State AGs, Others File Net Neutrality Challenges in DC, 1st Circuits to Preserve Venue Rights

State attorneys general and others challenged the FCC net neutrality regulatory repeal in different federal appellate courts Tuesday, to preserve their venue rights due to lingering uncertainty about the judicial timetable despite the regulator's clarification. Twenty-two state AGs (including from the District of Columbia), Public Knowledge, Mozilla and New America's Open Technology Institute (OTI) said they filed separate petitions for review in the U.S. Court of Appeals for the D.C. Circuit. Free Press filed in the 1st Circuit, where the group said it's headquartered. State net neutrality legislation is moving forward, while more U.S. senators signed onto a Congressional Review Act resolution to undo the FCC's rescission of the rules.

“An open internet -- and the free exchange of ideas it allows -- is critical to our democratic process,” said New York AG Eric Schneiderman in a release on the state petition. “The repeal of net neutrality would turn internet service providers into gatekeepers -- allowing them to put profits over consumers while controlling what we see, what we do, and what we say online. This would be a disaster for New York consumers and businesses, and for everyone who cares about a free and open internet." The AGs of Pennsylvania (here) and Washington state (here) also issued statements.

In undoing net neutrality regulation, the FCC ordered that the judicial review timetable wouldn't begin until the item is published in the Federal Register (which has yet to occur), but some speculated that parties would file before then to preserve their rights to influence the circuit venue in case the courts disagree with the agency view (see 1801050031). When judicial review becomes ripe, parties have 10 days to file petitions in a particular circuit court if they want to influence the venue; a multijurisdictional court lottery decides venue when timely filings are in different circuits. The FCC didn't comment Tuesday.

Public Knowledge said "out of an abundance of caution," it filed a "protective petition" in the D.C. Circuit. "While we believe that under the best reading of the rules the FCC's Order is not ripe for challenge until it is published in the Federal Register, in the past the judicial lottery -- which determines which appellate court will hear a challenge to an FCC action -- has been run based on premature petitions," said PK Senior Counsel John Bergmayer in a release. “This is a purely procedural move, and we would not object if all early-filed petitions were held in abeyance by the FCC and the lottery is conducted based only on challenges filed after Federal Register publication. Of course, we will file to challenge the FCC at that time." Mozilla (here), Free Press (here) and OTI (here) offered similar explanations in releases.

In Congress

Congressional Democrats touted additional support Tuesday for their planned CRA resolution to undo the FCC’s repeal vote, including reaching unanimous support within the Senate Democratic caucus for the measure.

House Communications Subcommittee ranking member Mike Doyle, D-Pa., announced he had more than 80 co-sponsors for his planned House version, including House Minority Leader Nancy Pelosi, D-Calif. Sen. Ed Markey, D-Mass., is leading the Senate version, which had the support of more than 40 senators last week (see 1801090028). Maine's Susan Collins was the only Senate Republican who publicly supported the resolution at our deadline, bringing the total number of senators supporting it to 50. The measure would need 51 votes to pass.

Alabama's Doug Jones was among Senate Democrats who officially signed on Tuesday. “A free and open internet is crucial,” Jones said. “Restoring net neutrality is the right thing to do to protect Alabama consumers and to provide an equitable platform for companies of all sizes to compete for their customers.” Markey hailed the support milestone during a Tuesday news conference, saying the Senate needs to act on the measure “because this is an action that goes right to the heart of job creation in Massachusetts and across our country.”

Doyle hopes to “mirror” Senate momentum for the resolution “in the House,” noting that he “will continue to seek additional cosponsors in the weeks ahead.” There's “overwhelming public support for preserving Net Neutrality, so it’s no surprise that there’s strong support in Congress as well,” Doyle said in his news release: “I’m confident that if there’s enough public pressure, Congress will overturn” the rescission order.

State Legislation

The California Senate Appropriations Committee delayed voting on a net neutrality bill that cleared a different committee last week (see 1801110039). Lawmakers -- mostly Democrats -- have introduced or promised net neutrality bills and resolutions in more than 10 states (see 1712270013 and 1801120026).

The Appropriations Committee Tuesday moved SB-460 into its “suspense file,” a category reserved for bills deemed to be costly, said a spokesman for bill author and Senate President Kevin de León (D). The delay is to “work out amendments over time,” said the spokesman.

State lawmakers should act quickly on good net neutrality legislation, but the Electronic Frontier Foundation doesn’t support de León’s approach, said EFF Legislative Counsel Ernesto Falcon in an interview. California “can’t be a substitute FCC” or it will get pre-empted, he said. EFF supports a different California bill, by Sen. Scott Wiener (D), and other state bills like it that include restricting state contracts to net-neutral ISPs, he said. De León’s bill, which would require the California Public Utilities Commission to police net neutrality, seems more about scoring political points, as the California Senate president is running for U.S. Senate against Dianne Feinstein (D), Falcon said.

De León’s bill “is moving very quickly,” said California Cable & Telecommunications Association President Carolyn McIntyre. CCTA opposes SB-460 and hasn't taken a position on the Wiener bill. “A more deliberative process would allow time for a more thorough discussion of the policies,” McIntyre said. The Utility Reform Network supports SB-460, is "glad to see this bill moving quickly, and know[s] that there will be plenty of time for amendments in the Assembly," a spokeswoman said.

Another bill surfaced in Alaska. State Rep. Scott Kawasaki (D) Friday proposed requirements for broadband providers as HB-277. “I appreciate the commitment from Alaska’s large internet providers to treat all customers equally, but this issue is too important to allow companies to make ad-hoc decisions about what kinds of information customers can have access to and at what speed,” he said in a statement. Possible FCC pre-emption “is a potential barrier,” a Kawasaki aide said.