The agency is using an arcane strategy to try to shut down some of the efforts to restore net neutrality.
The Federal Communications Commission is making every effort to shut down lawsuits against its decision to repeal net neutrality, including employing some arcane and somewhat desperate legal strategies.
Put as simply as possible, the FCC wants to have a previous court decision on net neutrality rules scrapped from the legal record, which would eliminate a precedent for net neutrality proponents currently challenging the agency. The FCC’s reasoning for requesting the scrap, though, is that those net neutrality rules don’t exist anymore…because the FCC reversed them…which is why they’re being challenged in court in the first place.
“It’s kind of like they’re trying to sweep a broken vase under the rug and saying ‘what vase? What are you talking about?’” said Christopher Terry, a media law professor at the University of Minnesota, in a phone interview.
The long, complicated saga of net neutrality litigation goes back to when the agency first established the rules, through the Open Internet Order in 2015. This order cemented net neutrality protections federally by reclassifying ISPs as a telecommunications service that can be regulated like a public utility.
Major telecom companies were not psyched about these new rules, in part because they limited the ways companies could make money (for example, an ISP couldn’t get a kickback from a streaming service for providing faster connections to that service over, say, Netflix). Big Telecom’s first move was to take the FCC to court to challenge the new rules, which resulted in a 2016 ruling from the D.C. Court of Appeals that upheld net neutrality rules and said the FCC was well within its right to reclassify ISPs.
Big Telecom was not satisfied, so in September of last year lobbyists appealed to the Supreme Court, asking it to rule on net neutrality and whether the FCC had overstepped. Then, while we were waiting for the court to hear that case, the FCC went ahead and nuked net neutrality last December. In response, pro-net neutrality groups—including Mozilla, digital rights non profits, and 22 state attorneys general—launched a lawsuit against the FCC, claiming it can’t repeal net neutrality because its justification for doing so, that the original order was outside of the agency’s purview, had already been ruled against in that 2016 D.C. Court decision.