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The first lawsuits to save net neutrality have been filed

Attorneys general from 22 states are among those suing the FCC, which voted to gut rules protecting the open internet.

Marguerite Reardon Former senior reporter
Marguerite Reardon started as a CNET News reporter in 2004, covering cellphone services, broadband, citywide Wi-Fi, the Net neutrality debate and the consolidation of the phone companies.
Marguerite Reardon
3 min read
Sarah Tew/CNET

The first lawsuits to overturn the Federal Communications Commission's rollback of Obama-era net neutrality rules have been filed.

Attorneys general from 22 states filed a lawsuit on Tuesday to block the repeal of the rules. Mozilla, maker of the Firefox browser, also said it has filed a suit against the FCC, and several public interest groups have filed petitions in court.

New York Attorney General Eric Schneiderman is leading the charge among the states, calling the FCC's repeal "arbitrary and capricious," according to a press release announcing the lawsuit. The suit also claims that the FCC "improperly and unlawfully includes sweeping preemption of state and local laws."

"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," Schneiderman said in a statement.

The lawsuits and petitions, which were filed in the US District Court of Appeals in Washington, are the first to be submitted in defense of the 2015 rules, which were designed to ensure broadband companies can't block or slow down access to the internet and can't charge companies a fee to reach customers faster. The FCC voted 3-2 to dismantle the rules in December, saying that the regulation adopted had stifled investment in broadband networks.

Lawsuits challenging the FCC's move weren't expected until after the order was published in the Federal Register, which hasn't happened yet. But parties filing the suits said it's unclear under federal law if their petitions should be filed earlier. To be safe, they started filing their cases today.

"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," Denelle Dixon, Mozilla's chief legal and business officer, said in a blog post. "However, federal law is more ambiguous."

It's important for groups suing the FCC to get their suits filed as soon as they're allowed, because it could determine which federal appeals court hears the case. There are expected to be several suits challenging the FCC's move. Because these cases will likely be consolidated, a lottery will be held to determine where the challenge will be heard. Net neutrality supporters would like the DC Circuit Court of Appeals to hear the case because previous legal challenges to FCC net neutrality rules have been heard there. And since the DC Circuit upheld the 2015 rules when they were challenged by AT&T and other industry groups, net neutrality supporters believe this court will be more favorable to their arguments. 

John Bergmayer, senior counsel for Public Knowledge, explained that his group's filing is purely procedural for this reason.

"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," he said in a statement. "Thus, to protect our rights, we have filed today."

Meanwhile, Democrats in the Senate are also mounting their own attack on the FCC's repeal. On Monday, Democratic leadership announced it has 50 votes lined up to vote on a bill that would turn back the FCC's repeal. They've won over Sen. Susan Collins of Maine, but the effort may be futile even if they can muster one more Republican to cross party lines and vote with them. The measure would also have to be passed by the Republican-controlled House of Representatives and signed by President Donald Trump.

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