Net neutrality advocates prepare for legal action against FCC

With exactly a week left till the FCC is expected to gut net neutrality protections, protests planned Thursday and on the day of the vote are unlikely to change the expected outcome, which rests in the hands of a regulation-averse majority-Republican commission.

So after Thursday, when protesters gather at Verizon stores nationwide and at the annual FCC chairman dinner in Washington, plus at FCC offices next week, what’s next?

“Right now we’re at the point of litigation, not legislation,” said Sen. Ed Markey, D-Massachusetts, during a press conference call Wednesday.

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Markey said he and Rep. Anna Eshoo, the Silicon Valley congresswoman, plan to sign on to an amicus brief in defense of net neutrality rules when the time comes.

Eshoo, who was also on the call, said the few Republicans who have indicated they want to craft legislation to protect net neutrality are being disingenuous.

“Legislation on what?” she said. “It’s a ruse. They don’t want a cop on the beat.”

FCC Chairman Ajit Pai’s draft order, titled “Restoring Internet Freedom,” aims to transfer enforcement to the Federal Trade Commission. The FTC’s acting chair, Maureen K. Ohlhausen, recently said her agency is ready to be that cop on the beat.

“The FTC has regularly addressed the kinds of anticompetitive behaviors that concern net neutrality advocates,” she said during a speech last week. “For example, the FTC has sued companies for foreclosing rival content in an exclusionary or predatory manner. We have challenged problematic access, discrimination, pricing, and bundling practices.”

But Jon Sallet, former general counsel for the FCC, said during Wednesday’s press call that the FTC only looks backward, and that its investigations into wrongdoing can take years.

Tom Wheeler, who was FCC chairman before Pai and who was also on the call, agreed.

“The FTC can’t move till the barn has burned down,” Wheeler said. He warned that rolling back net neutrality rules will hurt consumers and entrepreneurs, who may face higher costs to get their businesses up and running.

Evan Greer, campaign director of Fight for the Future, one of the advocacy groups behind the net neutrality protests, said the groups are prepared to fight for the principle in court.

“The FCC has to legally justify its changes, which it will have a difficult time doing,” she told SiliconBeat Thursday.

Tim Wu, the academic who coined the “net neutrality” phrase, wrote in a recent New York Times op-ed that “government agencies are not free to abruptly reverse longstanding rules on which many have relied without a good reason, such as a change in factual circumstances.”

Sallet expressed a similar sentiment Wednesday, saying Congress created the FCC as an expert agency to uphold the regulations it’s now attempting to throw out: “I believe the draft order is highly vulnerable to reversal.”


Photo: InĀ opposition to next week’s expected FCC vote to repeal the Open Internet Order, people protest at a net neutrality rally outside a federal building in Los Angeles on Nov. 28, 2017. (MARK RALSTON/AFP/Getty Images)


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