Mozilla and several consumer groups say they'll be joining 22 state Attorneys General in suing the FCC for its net neutrality repeal. While procedure dictates that lawsuits can't be filed until after the FCC's "Restoring Internet Freedom" order is posted to the federal register (which hasn't happened yet), Mozilla notes that it petitioned the United States Court of Appeals (pdf) out of an abundance of caution, kickstarting the process to determine which court will finally hear the case:
"As a process note, the FCC decision made it clear that suits should be filed 10 days after it is published in the Federal Register, which has not yet occurred. However, federal law is more ambiguous. Due to the importance of this issue, even though we believe the filing date should be later, we filed in the event a court determines the appropriate date is today. The FCC or a court may accept this order or require us and others to refile at a later date. In fact, we’re urging them to use the later date. In either instance, we will continue to challenge the order in the courts."
Mozilla's lawsuit was filed the same day as coordinating lawsuits from consumer groups like Public Knowledge and Free Press. In a statement of its own, Public Knowledge notes it similarly filed its petition early as a preliminary and protective legal move:
"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. Thus, to protect our rights, we have filed today.
In other words, 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, as well."
The Open Technology Institute also says it also filed its own lawsuit against the FCC early, hoping to ensure a favorable court selection during the Panel on Multidistrict Litigation (MDL) lottery. All told, four of the net neutrality lawsuits were filed in the United States Court of Appeals for the District of Columbia Circuit, while the Free Press lawsuit was filed in the United States Court of Appeals for the First Circuit.
This is just the opening salvo in what will be a long-standing legal standoff between people who'd prefer the internet remain healthy and competitive, and ISPs eager to abuse a lack of competition in the broadband last mile to their own, additionally anti-competitive advantage. All of the lawsuits will attempt to prove that the FCC violated the Administrative Procedure Act by engaging in an "arbitrary and capricious" reversal of extremely popular policy without proving that the broadband market changed dramatically enough in just two years to warrant it.
As we've noted previously, the lawsuits will also focus on how the FCC turned a blind eye to identity theft and comment fraud during the FCC's open comment period, and efforts by some group or individual to try and downplay the massive public opposition to the FCC's handout to the telecom sector. Expect more details on the origins (and potentially funding) of these efforts as the legal fight moves forward over the coming months and years. Though some ISPs surely won't be able to help themselves, expect ISPs to try and remain on their best behavior for a while to avoid undermining their arguments in court.
Should they win in court however, it can't be understated how the attack on net neutrality is just one small part of an over-arching ISP lobbying effort to remove nearly all meaningful state and federal oversight of some of the least-liked, least-competitive companies in America. That involves efforts to pass loophole-filled fake net neutrality laws with one goal: preventing tough, real rules from being passed down the road by a less Comcastic Congress or FCC.