TR Daily Federal Register Publication of RIF Order Triggers CRA, Court Challenges
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Thursday, February 22, 2018

Federal Register Publication of RIF Order Triggers CRA, Court Challenges

The FCC’s “restoring Internet freedom” (RIF) declaratory ruling, report and order, and order adopted in December was published in today’s “Federal Register,” to renewed criticism from net neutrality supporters, refiled court challenges from parties intent on being included in the lottery for circuit assignment, and rallying calls from lawmakers seeking to undo the agency’s action through a Congressional Review Act resolution.

The FCC’s December action reclassified broadband Internet access service (BIAS) as an information service subject to Title I of the Communications Act and eliminated rules against blocking, throttling, and paid prioritization adopted by the agency in 2015 when it classified BIAS as a Title II common carrier service.

The notice in the “Federal Register” said that the declaratory ruling, report and order, and order will take effect on a date to be announced in a future “Federal Register,” after the agency receives approval from the Office of Management and Budget for modified information collection requirements contained in the item.

Under the Congressional Review Act, the 60-legislative-day window for Congress to pass a resolution disapproving an agency action begins after the agency reports on its action to Congress, which the FCC has already done, and after “the rule is published in the Federal Register, if so published.”

Federal agency actions must be “final” before parties may ask the courts to review them, and what constitutes “final” isn’t always clear. Several parties filed “protective” petitions seeking court review of the RIF item after the FCC released the text of the item in January, to preserve their right to be included in a judicial lottery to select the circuit to hear the case in the event that the courts viewed that action as rendering the item “final,” only to withdraw their petitions when no lottery was held.

Parties interested in being included in the lottery selection were again quick to file or to indicate their intention to file soon, so as to be included in the anticipated lottery by the Judicial Panel on Multidistrict Litigation.

House Energy and Commerce Committee ranking minority member Frank Pallone Jr. (D., N.J.) said, “With the official printing of the Trump FCC’s net neutrality repeal, Washington Republicans are one step closer to stripping control of the internet away from the American people and handing it over to large corporate interests. Nobody should be able to influence what videos you watch, which sites you read and which services you use, but the Trump FCC’s action will take that decision away from all of us, jeopardizing free speech and small business innovation. The fight officially begins today to protect the free and open internet.”

The FCC is an independent agency, not part of the Trump administration.

House communications and technology subcommittee ranking minority member Mike Doyle (D., Pa.), who has spearheaded the CRA resolution effort in the House, said, “Today marks another milestone in the Trump Administration’s attack on the free and open internet. With the publication of these rules, the FCC has taken another step towards stripping away the essential protections that make the internet an open platform for commerce, communication, expression, and innovation. Now that the order to eliminate net neutrality has been published in the Federal Register, the period of time in which legislation to overturn the order can be introduced has begun, and we can begin the legislative process to overrule the FCC and preserve net neutrality.”

Rep. Doyle announced that he as of today, 143 House members have agreed to co-sponsor the CRA resolution to overturn the FCC’s December action.

Sen. Edward J. Markey (D., Mass..), a member of the Senate Commerce, Science, and Transportation Committee, who is heading up the CRA resolution in that chamber, said that 50 senators have pledged their support— the 49 members of the Senate Democratic Caucus, which includes Independents Bernie Sanders (Vt.) and Angus King (Maine), and Republican Sen. Susan Collins (Maine) — and are thus one vote short of a majority in the 100-member Senate.

“Today, the national movement of students, entrepreneurs, innovators, technology companies, and fed-up consumers is putting the big cable and telecommunications companies on notice — we’re coming for our net neutrality and we will not stop,” said Sen. Markey. “The FCC and Chairman Pai just triggered a timeline that will culminate in a Senate vote on my resolution, and we cannot let up until we win. The internet doesn’t belong to big internet service providers and special interests who want to turn it into a toll road where consumers will pay more while the biggest corporations get to ride in the fast lane. With only 60 legislative days to find one more vote, I call on my Republican colleagues to join us and the vast majority of Americans who want the internet to remain free and open and a level playing field for everyone.”

House Minority Leader Nancy Pelosi (D., Calif.) said, “Millions of Americans have raised their voices to fight for a free and open Internet. That fight now goes to the Congress and the courts. Democrats will also continue to demand a vote on Congressman Mike Doyle’s vital resolution to stop the FCC’s assault on net neutrality. Congress must act to reverse the FCC decision and restore the bipartisan, decades-long consensus that supports a free Internet. Democrats, and the American people, call on Republicans to join us to stop the FCC assault on consumer choice and consumer protections. “In the courts, Democrats expect the only ruling consistent with the letter of the law and the will of the American people: that this decision will rightly be found illegal,” Rep. Pelosi added.

Democratic National Committee Chief Technology Officer Raffi Krikorian said, “Republicans in Congress must take action and join Democrats in rejecting these rules. We need strong guidelines designed to protect budding startups and businesses from large corporations that might want to stamp out their competition. Democrats believe that an open internet is fundamental to free speech, innovation, and a competitive economy. It also gives the marginalized and underrepresented more resources and opportunities to organize and have their voices heard. Over the next 60 days and beyond, we will keep fighting to protect the free and open internet that is so critical to our democracy.”

FCC Commissioner Mignon L. Clyburn, who dissented from the FCC’s December RIF action, said, “Today it is official: the FCC majority has taken the next step in handing the keys to the internet over to billion-dollar broadband providers by publishing the Destroying Internet Freedom Order in the Federal Register. I am both disappointed and hopeful. Disappointed that this is one more anti-consumer notch on this FCC’s belt, but hopeful that the arc of history is bent in favor of net neutrality protections.”

Commissioner Clyburn added, “Whether it is litigation, state action, or some other mechanism that brings it about, I am sure that robust net neutrality protections will prevail with the American public!”

FCC Commissioner Jessica Rosenworcel, who also dissented from the FCC’s December RIF action, said, “The FCC’s net neutrality decision is a study in just what’s wrong with Washington. This agency failed the American public. It failed to listen to their concerns and gave short shrift to their deeply held belief that internet openness should remain the law of the land. It turned a blind eye to all kinds of corruption in our public record—from Russian intervention to fake comments to stolen identities in our files. As a result of the mess the agency created, broadband providers will now have the power to block websites, throttle services, and censor online content. This is not right. The FCC is on the wrong side of history and the wrong side of the law and it deserves to have its handiwork revisited, reexamined, and ultimately reversed.”

Among the parties that had filed “protective” petitions with the courts after the FCC released the text of the order in January was a coalition of 23 attorneys general led by New York Attorney General Eric Schneiderman. In a press release today, Mr. Schneiderman said that the coalition has refiled in the U.S. Court of Appeals for the D.C. Circuit after the “Federal Register” publication.

“An open internet, and the free exchange of ideas it allows, is critical to our democratic process. Repealing net neutrality will allow internet service providers to put corporate profits over consumers by controlling what we see, do, and say online. Consumers and businesses in New York and across the country have the right to a free and open internet, and our coalition of Attorneys General won’t stop fighting to protect that right,” Mr. Schneiderman said.

Joining the New York AG in the court challenge are the Click here to read the petition. The lawsuit is led by Attorney General Schneiderman, and filed by the attorneys general of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

In the brief court filing, the AGs said the FCC’s order was “arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act,” as well as violating “federal law, including, but not limited to, the Constitution, the Communications Act of 1934, as amended, and FCC regulations promulgated thereunder”; that it “conflicts with the notice-and-comment rulemaking requirements of 5 U.S.C. [section] 553; and is otherwise contrary to law.”

The California Public Utilities Commission announced that it filed a petition for review with the Ninth Circuit (San Francisco) on the grounds that the decision “is arbitrary, capricious, and an abuse of discretion.” The CPUC added that the decision “violates federal law, including but not limited to the U.S. Constitution and the Communications Act of 1934.” Mozilla, Inc., which had also filed a protective petition last month, announced that it too is refiling in the D.C. Circuit. It cited similar broad Communications Act and APA violations.

Free Press, which had filed a protective petition with the First Circuit (Boston) announced today that it would “soon” refile a petition for review of the FCC’s order.

Free Press Policy Director Matt Wood said, “As we’ve made clear from the beginning, Free Press will sue the FCC over its decision to gut Net Neutrality safeguards. The legal arguments and economic evidence are clear. The FCC was dead wrong to repeal rules that prevented discrimination just as Congress intended, and that rightly classified internet-access providers as common carriers under the law.”

Mr. Wood added, “Chairman Pai and his Republican colleagues at the FCC have ignored the fact that the 2015 rules were working for everyone, as broadband investment and deployment continued under the Title II-based protections the Pai FCC struck down. Pai also ignored irregularities in the agency’s own commenting procedures. The agency’s docket shows there was an unprecedented public outcry supporting the Net Neutrality rules, but there were also fraudulent submissions that the FCC refused to investigate.”

Public Knowledge, which had filed a protective petition with the D.C. Circuit, said today that it is refiling in the same circuit.

Public Knowledge Senior Counsel John Bergmayer said, “By eliminating its rules and oversight role, the FCC has given broadband providers the green light to press forward with anticompetitive and anti-consumer business models. With this action, the FCC has put us all at the mercy of local monopoly broadband providers like Comcast and Verizon. All we are left with is Big Cable and Big Telco telling us to ‘trust them’ not to violate net neutrality principles.”

Mr. Bergmayer added, “There will be consequences as broadband providers begin exploiting this newfound power. Americans should closely monitor their broadband and online service bills, as some sites and web services may have to pay for prioritized access online — and will ultimately pass those costs on to consumers. Furthermore, broadband providers now have the authority to sell broadband like they sell cable television, where the company decides where you go online and sets packages and tiers which require more money to reach more of the internet. Broadband users now also lack even the most basic privacy protections, with even FTC oversight of broadband provider practices under challenge in the courts.”

He added, “We also urge Americans to contact their representatives and demand that they support overturning the FCC’s net neutrality repeal through the Congressional Review Act. Chairman Pai may have ignored millions of Americans, but he can’t ignore Congress — or the courts.”

Consumer Federation of America Senior Fellow Mark Cooper said, “Regardless of what you think about Title I v. Title II, one thing is certain, ‘Title 0,’ is inadequate to prevent the anticompetitive, anti-consumer abuse of market power that the network owners will have a strong incentive and ability to impose on consumers and ‘over-the-top’ services providers.”

Mr. Cooper added, “The FCC’s flip-flop on network neutrality is not only wrong on substance, it is wrong on process. Unable to build a record that would support this radical deregulation, the agency simply invented a new theory. But the Administrative Procedure Act demands decisions bear a clear relationship to an empirical record before the agency that is a reasonable representation of reality. Failing that, as this flip-flop does, the rule must be found to be arbitrary and capricious and vacated. We have already made this argument in an amicus brief filed in the FCC's Business Data Services ‘flip-flop.’”

Mr. Cooper continued, “As the inevitable court challenges to the network neutrality ‘flip-flop’ unfold in the months ahead, our analysis will show that theory is not only contradicted by the record, but it is also at odds with the economic literature that has developed over the past three decades. This literature shows strong concern about the abuse of market power in industries that have been deregulated and remain highly concentrated, and even greater concerns about digital platform industries in which bottlenecks and chokepoints magnify the incentive and ability to abuse market power.”

Jonathan Schwantes, senior policy counsel for Consumers Union, said, “When the FCC chose to repeal net neutrality, it ignored the millions of Americans that filed comments to preserve an open internet, as well as the overwhelming majority of Americans who — in poll after poll — support these strong standards. Now that the repeal has been published in the Federal Register, Congress has the opportunity to do what the FCC didn’t. We urge Senators to listen to the consumers they represent and vote to restore these critical net neutrality rules to ensure that internet service providers aren’t the gatekeepers to the internet.”

A survey by Consumer Unions’ “Consumer Reports” magazine recently found that 57 percent of Americans supported the net neutrality rules, while 16 percent opposed them and 27 percent did not state an opinion, the organization said. “The survey showed strong opposition to practices by providers that were prohibited by the rules, such as the 67 percent who disagreed that providers should be able to choose which websites, apps or streaming services customers can access,” it added.

Chip Pickering, chief executive officer of Incompas, said, “Ignoring the backlash from consumers and businesses across the country the FCC is putting the future in the hands of a few giant ISP gatekeepers, whose only argument seems to be, ‘trust us, we’re the cable company.’”

Mr. Pickering added, “Now is the time for the 80 percent of Americans — Republicans and Democrats—– who support strong net neutrality principles to rise up and demand their Members of Congress act with all deliberate speed to stop the FCC and save the streaming revolution.”

Meanwhile, some parties called on Congress to adopt affirmative legislative laying out net neutrality ground rules, instead of the CRA resolution.

Robert McDowell, chief public policy adviser of Mobile Future, said, “With today’s publication of the FCC’s Restoring Internet Freedom Order in the Federal Register, proponents of heavy-handed Title II regulation are starting the next round in a long running political ping pong match. It’s time for the games to end. Congress can and should put this issue to rest, by passing comprehensive legislation that enshrines open Internet rules and protects consumers across their entire Internet experience.”

“Congress should focus on substantive legislation, not a CRA resolution with almost no chance of becoming law,” said TechFreedom President Berin Szóka. —Lynn Stanton, [email protected]

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