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​The real battle for net neutrality begins: The people v. FCC

The FCC will not be getting the last word on the fate of net neutrality.
Written by Steven Vaughan-Nichols, Senior Contributing Editor

Video: Net neutrality explained with beer

I predicted that all our protests against the killing of net neutrality wouldn't amount to a hill of beans. From the moment President Donald Trump took control of the Federal Communications Commission's (FCC), there was never any doubt that his FCC would kill net neutrality. FCC Chairman Ajit Pai told us exactly how he'd kill net neutrality. And, now, he's done it.

Fortunately, Pai and company don't get the last word. We do.

While Pai ignored the many comments against net neutrality, he'll find it harder to ignore the courts, state governments, and Congress.

New York Attorney General Eric Schneiderman started the ball rolling when he tweeted, "I will sue to stop the FCC's illegal rollback of #netneutrality. New Yorkers and all Americans deserve a free and open internet." He's far from the only one.

So far, Illinois, Oregon, Massachusetts, and Washington attorney generals have announced suits. Iowa Attorney General Tom Miller's office tweeted: "Our office will consult with other state attorneys general in the wake of the FCC's decision to repeal #NetNeutrality. It's likely there will be a multistate legal challenge." He's probably right. Over a dozen state attorney generals had signed a letter earlier asking the FCC to delay its vote.

Their core argument will be that while Pai maintains broadband should be classified as an information service and he's only restoring internet regulations to the way they were and should be again, that's not really the case. Until a Supreme Court decision in 2005, Internet Service Providers (ISPs) were not seen as information services. The net neutrality changes President Barack Obama's FCC made in 2015 weren't a radical change but a restoration to how the commercial internet had been governed since the birth of the Commercial Internet Exchange (CIX) from 1993 to 2005.

Lawyers for the states and web companies will argue that given how completely wrong the FCC was in its logic and reasons for killing net neutrality, this new decision should be rejected because the Administrative Procedure Act prohibits regulations that are "arbitrary and capricious."

This argument will have teeth to it since Pai ignored the pro-net neutrality FCC comments, any attempt to see how many of them were fraudulent, and the Distributed Denial of Service (DDoS) attack on the FCC comment site. He may ignore them but the pro-net neutrality attorneys haven't forgotten them. Schneiderman's lawsuit on the comments continues. Further, Schneiderman states that as many as two million of the comments were fake.

Of those, according to a study by Startup Policy Lab, which surveyed over 450,000 randomly selected emails associated with the FCC comments, "88 percent of survey respondents whose emails were used to submit pro-repeal comments replied with "no" -- they did not submit the comment. Conversely, only 4 percent of pro-net neutrality respondents said that they did not submit the comment attributed to them.

Win, lose, or draw, there's more than enough issues to drag the FCC anti-net neutrality ruling through the courts for years to come.

In their attempt, Pai and company have also tried to block the states from making their own net neutrality laws. It's interesting that, after trying to wash their hands of regulating ISPs, Pai's FCC is also trying to make sure that local governments can't govern them either.

The FCC's logic is hard to follow. Matthew Schettenhelm, a litigation and government analyst with Bloomberg Intelligence, commented, "The law is less clear on this. It's at least a little awkward for the FCC to first say it has no power over broadband service, then to say it can use that absence of power to supersede the states."

Needless to say, the states are ignoring Pai and moving ahead with their own plans. So far, California, Washington, and New York state legislators have announced their intent to regulate ISPs since the FCC won't.

In 22 states, broadband privacy legislation has already been proposed in 2017. It can be expected they'll follow up with net neutrality laws as well.

Congress isn't sitting idly by either. The bill, H.R.4585 - Save Net Neutrality Act of 2017, has already been proposed, and more will come. After the FCC announced its decision, Colorado Congressman Mike Coffman, a Republican, immediately announced, "This conversation belongs in #Congress."

The FCC can try to dictate the future of the internet, but the battle is on. In public opinion, the courts, and in some parts of the government, the fight for a free and fair internet will continue.

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