• by Wendy Davis  @wendyndavis, October 22, 2018

Attorneys general in three states -- Texas, Nebraska and Arkansas -- are supporting the Federal Communications Commission's decision to roll back the Obama-era net neutrality rules.

They argue in a friend-of-the-court brief filed late last week that federal agencies are entitled to change their policies after a presidential election results in an administration change, as happened when President Obama left office in January of 2017 and Trump was sworn in.

“So long as an agency acts within its realm of authority, its decision to alter a policy decision — or even reverse course — is not subject to a special, enhanced standard of review,” the state attorneys general write in papers filed with the D.C. Circuit Court of Appeals. “A federal agency is not obligated to engage additional processes when reversing course from a previous administration. Decision makers can reconsider the same data and come to a different conclusion resulting in another interpretation and decision.”

Texas, Nebraska and Arkansas are asking the appellate court to reject attempts to reinstate the 2015 net neutrality rules, which prohibited broadband carriers from blocking or throttling online traffic and from charging companies higher fees for prioritized delivery. Last December, the Republican-led FCC voted 3-2 to revoke those rules, and to prohibit states from passing or enforcing their own net neutrality laws.

FCC Chairman Ajit Pai said the prior regulations were "heavy handed" and depressed investment. But net neutrality proponents counter that the rules are necessary to prevent broadband providers from engaging in censorship, and from harming competitors.

In August, a host of organizations and tech companies asked the D.C. appellate court to invalidate the FCC's repeal, effectively restoring the Obama-era rules. Attorneys general from 22 other states -- including New York and California -- and the District of Columbia made a similar request.

Among other arguments, they say the agency lacked a good reason to repeal the 2015 rules, and that the repeal runs counter to directives that date to 2005, when the FCC first issued open internet policy principles.

Earlier this month, the FCC defended its repeal, arguing that Supreme Court precedent allows agencies to revise their approach. “An agency is free to change its interpretation of an ambiguous statute so long as it 'adequately explains the reasons for a reversal of policy,'” the FCC wrote in its legal papers, quoting from a 2005 Supreme Court case about broadband. The Supreme Court said in that case that the Communications Act was ambiguous about whether cable broadband is a “telecommunications” service.