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The Fate of Net Neutrality Hinges on the House

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WASHINGTON — On Monday, Free Press and other groups filed a joint brief in their D.C. Circuit Court of Appeals challenge to the Federal Communications Commission’s 2017 decision to repeal the Net Neutrality protections.

The brief argues that the agency under Chairman Ajit Pai was wrong to do away with the Title II telecommunications-services classification of internet access providers. That classification provided the framework for rules preventing companies like AT&T, Comcast and Verizon from blocking or throttling web traffic or otherwise interfering with internet users’ ability to connect and communicate online.

Free Press filed jointly alongside fellow petitioners Ad Hoc Telecom Users Committee, the Benton Foundation, the Center for Democracy and Technology, the Coalition for Internet Openness, Etsy, Inc., INCOMPAS, Mozilla Corporation, the National Hispanic Media Coalition, NTCH, Inc., the Open Technology Institute, Public Knowledge and Vimeo, Inc.

The full filing is available here (PDF).

Free Press Policy Director Matt Wood made the following statement:

“Even before he was named chairman, Ajit Pai announced his intent to destroy the FCC’s strong Net Neutrality rules. From those early days of this administration, right up through this month’s shocking report showing he misled Congress and the public about fake denial-of-service attacks, Pai has run a broken process to arrive at exactly the wrong legal conclusions about Net Neutrality.

“He and his Republican colleagues at the agency failed to assemble a shred of credible evidence for taking away nondiscrimination protections, grounded in Title II of the Communications Act, which prevent ISPs from picking and choosing what speech they’ll transmit and what they’ll block or degrade.

“Our filing today explains the folly of their arguments, which ignore the realities of modern broadband internet-access service. In a ridiculous attempt to abdicate the FCC’s congressionally mandated responsibility to protect broadband users’ rights, the agency repealed its open-internet rules and abandoned the Title II framework this same court of appeals upheld.

“The FCC’s 2017 repeal confuses the wire and the website, the network and the edge provider. It pretends that the broadband access we all use to reach every destination on the internet is the same thing as those destinations. It leans on strange theories, already rejected by the D.C. Circuit, about how there’s allegedly no statutory distinction between the broadband conduit and the content accessed over it. No matter how much deference an agency may get from a reviewing court, the FCC can’t misread the statute and discard the law like this.

“The FCC's many legal failings have dire real-world consequences. Pai ignored flaws in the FCC’s proceeding, and irregularities in the agency’s own commenting technology. The docket shows there was a genuine and overwhelming public outcry against Pai’s decision and in support of the existing Net Neutrality rules. The FCC chose to ignore the substantive public protest while refusing to investigate or repair a malfunctioning docket that prevented many Net Neutrality supporters from uploading their comments. The agency likewise ignored evidence from tens of thousands of consumer complaints, and looked the other way when fraudulent comments filled its online filing system.

“The Pai FCC also dismissed clear evidence of the rules’ success for both broadband investment specifically and the internet economy’s investment as a whole. And the agency didn’t just botch its analysis of the social and economic harms to internet users and entrepreneurs from this repeal; it also pretended that unwieldy antitrust and weakened consumer-protection laws will protect free expression, political organizing and other online activities so vital to continuing the fight for racial and social justice today.”

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