FCC Net Neutrality Repeal Faces One Hell of a Court Fight

With the FCC slated to ignore the public and vote anyway to repeal net neutrality on December 14, many may wonder what happens next. After the expected 3-2 vote to kill the popular rules, the repeal will likely be posted in the federal register sometime in January. That will be the green light for numerous lawsuits against the FCC that will be filed by both consumer groups, and the smaller companies and competitors who'll likely be harmed by eliminating meaningful oversight of some of the least competitive, and least liked, companies in America.

And the FCC has its work cut out for it in court.

The FCC will need to prove that the broadband market changed substantially in the two years since the rules were created to justify such a stark reversal of what, by any measure, was a very popular policy. Consumer advocate lawyers will be looking to prove that the FCC acted in an "arbitrary and capricious" manner in violation of the Administrative Procedure Act.

And they will have ample evidence to support that claim.

For starters, the FCC is ignoring the record 22 million consumers opposed to the FCC's plan to gut the rules, and the fact that survey after survey show net neutrality has broad, bipartisan support. The FCC's net neutrality rule repeal isn't just unpopular -- it may just be the least popular government tech policy decision in the history of broadband -- dwarfing even the backlash activists saw during the fight over SOPA.

There's also the fact that most of the FCC's data supporting its repeal of net neutrality is based on outright lies that have been disproven by analysts and journalists time and time again. Like the FCC's claim (parroted by large ISPs) that net neutrality destroyed sector investment -- when SEC filings and more than half a dozen public ISP CEO statements have disproven this canard repeatedly.

But the FCC has another, more serious problem that goes well beyond its obvious disdain for the will of the public and the facts. The agency has repeatedly turned a blind eye to the wholesale fraud that occurred during the FCC's public comment period. We've noted how numerous studies have shown that some group or organization used a hacked database to fill the FCC proceeding with bogus support for the agency's plan, a tactic that went so far as to include the names of dead people.

If the looming lawsuits can illustrate a direct tie between this fraudulent behavior and the broadband industry, and that the FCC was aware of this but did nothing to try and downplay public opposition, things could get very interesting for the FCC, very quickly.



Early indications are that a notable chunk of this bogus support originated with policy organizations that do business with various ISP lobbying organizations . If the looming lawsuits can illustrate a direct tie between this fraudulent behavior and the broadband industry, and that the FCC was aware of this but did nothing to try and downplay public opposition, things could get very interesting for the FCC, very quickly.

There will be several other tangential efforts that could spell trouble for the FCC. That includes the General Accounting Office's investigation into an apparently bogus claim by the FCC that it faced a DDoS attack during the comment period, a claim utterly unsupported by any real evidence. Indications are somebody at the FCC either conflated an influx of angry John Oliver viewers as a DDoS attack, or intentionally created the DDoS attack in a bizarre attempt to downplay legitimate public opposition to the FCC's plan ("people aren't really angry at our policy, we were unfairly attacked!").

The FCC's also facing several lawsuits from reporters who say the agency failed to disclose its meeting with ISPs, failed to do anything about website comment fraud, and ignored Freedom of Information Act requests for additional detail on said phantom DDoS attack. New York Attorney General Eric Schneiderman is also conducting an investigation into identity theft to fuel bogus FCC support. The law isn't going to much care about Ajit Pai's political narrative if it can be proven that the FCC ignored proper agency procedure or worse, broke the law.

Should the FCC successfully run this legal gauntlet, it still has to find a way to prevent future FCC's in the post Trump era from simply re-establishing the rules via another 3-2 party line vote. That's why you'll likely see a push for a new net neutrality law in the new year backed by ISPs like Comcast, Verizon and AT&T. Said law will profess to "fix" the problem ISP lobbyists created by imposing a new net neutrality law that looks good on the surface, but will be so loophole-filled as to be largely useless (this was a tactic they already tried with the help of Senator John Thune).

Such a flimsy law would, however, prevent the FCC from revisiting the subject down the road. Expect ISP-loyal politicians, academics, think tankers, consultants, lobbyists and other policy parrots to begin making a hard push for this new law in the new year -- just as the multiple lawsuits against the FCC begin to truly heat up.