The Federal Communications Commission's repeal of net neutrality rules has received support from the Republican attorneys general of Texas, Arkansas, and Nebraska.

The three states filed a brief Friday in the US Court of Appeals for the District of Columbia Circuit, urging judges to reject a lawsuit filed against the FCC by 22 other states. The action highlights a partisan split among state attorneys general: states with Democratic attorneys general are fighting to save net neutrality while states with Republican attorneys general are either fighting against net neutrality or standing on the sidelines.

The FCC's net neutrality repeal is being challenged in a lawsuit filed by all 22 US states with a Democratic attorney general, as well as the District of Columbia, which also has a Democratic AG.

The net neutrality repeal has drawn interest from state governments partly because the FCC claimed that it can preempt states from enacting their own net neutrality rules. The states' lawsuit against the FCC seeks to reinstate federal net neutrality rules and prevent preemption of state laws, such as one just passed in California.

But the Texas/Arkansas/Nebraska brief supports the FCC's authority to change decisions made by previous administrations. The FCC's new leadership can look at the same set of facts and come to a different conclusion without violating the Administrative Procedure Act (APA), which dictates how agencies can make policy changes, they wrote.

"Accordingly, undoing or reversing agency action is permissible so long as the agency demonstrates awareness of the change and offers a satisfactory reason for it," they wrote. The brief was submitted by Texas AG Ken Paxton, Arkansas AG Leslie Rutledge, and Nebraska AG Doug Peterson.

“So-called ‘Net Neutrality’”

The now-repealed net neutrality rules "offered threats to investment and creative problem solving within the ISP community," The Texas/Arkansas/Nebraska brief said. The FCC's Republican majority led by Chairman Ajit Pai reversed the Obama-era FCC's net neutrality rulemaking "both to address these specific policy concerns as well as [to] cut back on regulatory red tape in general," the three states wrote.

The Texas/Arkansas/Nebraska brief did not specifically address the FCC's attempt to preempt state laws, but it argues that the entire FCC decision should be upheld.

"Because the FCC engaged in reasoned decision-making and provided an explanation for its policy shift, its Order rescinding so-called 'Net Neutrality' must be upheld," they wrote. The three states are concerned about the case because they "have an interest in protecting both consumers and purveyors of Internet services," the brief said.

The FCC argued in a recent brief that it has no "legal authority" to keep the net neutrality rules in place—despite the fact that the DC Circuit appeals court upheld those same rules in a previous case.

The lawsuit against the FCC was filed by the attorneys general from New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

The states suing the FCC argue that the FCC's decision to eliminate net neutrality rules was arbitrary and capricious and that the FCC cannot preempt state laws regulating conduct over which the FCC claims it has no regulatory authority.

Oral arguments in the case are scheduled for February 1, 2019.