Net neutrality supporters predict tough court battle over FCC's repeal plan

Net neutrality supporters predict tough court battle over FCC's repeal plan
© Greg Nash

Net neutrality supporters are predicting that the Federal Communications Commission (FCC) will have a hard time defending its decision to repeal the landmark rules in court.

The agency, led by Republican Chairman Ajit Pai, will vote next week on scrapping the 2015 net neutrality rules, which prevent internet service providers from blocking or slowing down websites or creating internet “fast lanes.”

“The draft order seems to say that the FCC is no longer interested in exercising its responsibilities as an expert agency,” Jonathan Sallet, a former FCC general counsel under the Obama administration, said in a call with reporters Wednesday.

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“I do not believe a court of appeals will uphold this order,” he added.

Tom Wheeler, the former Democratic FCC chairman who pushed the rules through in 2015, argued that a repeal represents the “successful culmination of a grand plan” by companies like Verizon, Comcast and AT&T.

“What we’re talking about here is the Trump FCC, in cooperation with the Republican Congress, taking away existing consumer protections at the request of the industry,” Wheeler told reporters. “This is a classic example of the regulators being captured by those they are supposed to oversee.”

The rules have survived legal challenges in the two years since they’ve taken effect, and supporters are already promising to sue to try to overturn Pai’s plan if it passes as expected.

"We are confident that the Restoring Internet Freedom order will be upheld in court," FCC spokeswoman Tina Pelkey said in a statement. "The U.S. Supreme Court has reviewed and upheld only one framework for Internet access service — the Title I light-touch framework to which the FCC is returning in the Restoring Internet Freedom order.”
 
Pai voted against the net neutrality rules as a minority member of the commission in 2015, and has since been arguing that they are too heavy-handed and stifle innovation.

He's also made the case that web companies like Facebook and Google are bigger threats to internet freedom than the internet providers governed by the FCC rules.

“So as we think about internet policy, we should look at the entire internet economy — not single out one part of it,” Pai wrote in a Washington Times op-ed on Tuesday. “And our aim shouldn’t be to pick winners and losers but instead to have consistent rules of the road. These rules should promote investment and innovation, protect internet freedom, and promote the market-based vision that’s served us so well for so long.”

But Democrats have dismissed that argument as a deflection from his own policies. And they’re predicting that the fight won’t end when the commission votes on Dec. 14.

Sen. Ed MarkeyEdward (Ed) John MarkeyMake the moon a refueling station — then head to Mars Dems push FEMA on housing help for displaced Puerto Ricans Overnight Energy: Trump moves to roll back Obama auto emissions standards | California vows to sue | Senate Dem looks to block plan in Congress MORE (D-Mass.) dismissed calls from Republicans to come up with a legislative replacement to the FCC rules, arguing that there’s still a chance to save the regulations.

“It’s a very vulnerable decision that they’re about to make,” Markey said on Wednesday’s call. “I think we have a very good chance of prevailing in court.”

Updated: 4:52 p.m.