California’s attorney general (AG), Xavier Becerra, joined a speculative lawsuit launched by his New York counterpart aimed at overturning the Federal Communication Commission’s decision to end broadband’s status as a common carrier service and eliminate network neutrality rules. Becerra’s press release might lead you to believe it was his idea, but it was New York AG Eric Schneiderman who led the effort and then convinced AGs from 20 other states, including California, to sign on.
It’s speculative because, as the filing acknowledges, it’s premature. The final-final version of the FCC’s decision hasn’t been published in the Federal Register yet. That’s when the starting gun goes off in the race to the courthouse.
Under the Administrative Procedure Act, the FCC cannot make “arbitrary and capricious” changes to existing policies, such as net neutrality. The FCC’s new rule fails to justify the Commission’s departure from its long-standing policy and practice of defending net neutrality, while misinterpreting and disregarding critical record evidence on industry practices and harm to consumers and businesses…Moreover, the rule wrongly reclassifies broadband internet as a Title I information service, rather than a Title II telecommunications service, based on an erroneous and unreasonable interpretation of the Telecommunications Act. Finally, the rule improperly and unlawfully includes sweeping preemption of state and local laws.
It’s the “arbitrary and capricious” bit that has the best chance of getting traction in a federal appeals court. Judges tend to defer to the FCC’s subject matter expert status on technical issues and have supported wide preemption of state and local discretion. But when the FCC makes those kinds of decisions, it has to exercise due diligence. In coming to the net neutrality decision it arguably didn’t. Commissioner Jessica Rosenworcel certainly argues that, and she was there for much of it.