• by Wendy Davis  @wendyndavis, November 19, 2018

The Federal Communications Commission ignored “substantial evidence” that revoking the net neutrality regulations would result in harm to consumers and threats to public safety, a coalition of state attorneys general and city officials argue in new court papers.

The repeal “jeopardizes residents’ access to safe and reliable electricity; prevents residents from receiving timely evacuation, shelter-in-place, and disease outbreak alerts; and interferes with urgent medical services, among other things,” the officials write in papers filed Friday with the D.C. Circuit Court of Appeals.

The legal arguments come as part of a challenge to the FCC's decision to revoke the Obama-era net neutrality rules. Those rules, passed in 2015, prohibited broadband providers from blocking or throttling online traffic and on charging companies higher fees for prioritized delivery.

Last December, the FCC voted 3-2 to revoke the net neutrality rules and reclassify broadband as an information service. That order replaced the prior regulations with a "transparency" rule that requires Internet service providers to disclose their traffic management practices. The December order also attempted to ban states from passing or enforcing their own net neutrality rules.

Current FCC Commissioner Ajit Pai, who shepherded the repeal, says the Obama-era rules were “heavy handed” and depressed investment. But net neutrality proponents say the rules were necessary to prevent broadband providers from limiting consumers' ability to access streaming video, search engines and other online services and content.

A coalition of tech companies, consumer advocacy groups, state attorneys and city officials general have asked the D.C. Circuit Court of Appeals to vacate the December order and reinstate the 2015 rules. Among other arguments, the attorneys general and city officials said the FCC didn't take into account that the repeal could harm public safety. They pointed to Verizon's decision to slow down service to firefighters battling blazes in California this summer.

The FCC, which is defending its decision to repeal the rules, argued last month that Verizon's move wouldn't have violated the Obama-era standards because the throttling was “application-agnostic” -- meaning that Verizon throttled all traffic to firefighters equally.

The agency also noted that, after its practice was exposed, Verizon promised to stop throttling firefighters and other first responders. This back-tracking on Verizon's part shows that rules aren't needed, the FCC argued.

“Far from demonstrating a problem with light-touch rules, this incident illustrates that transparency and market forces work -- without the need for heavy-handed rules,” the agency wrote in court papers submitted last month.

But the attorneys general counter that broadband providers' initial decision proves why rules are needed, and that an attempt to “address damaging practices after they actually harm public safety” is inadequate.

The attorneys general and city officials also argue that the FCC lacked authority to override state laws. The FCC argues it has broad jurisdiction over broadband, but the attorneys general say that doesn't allow the FCC to trump state laws.

“The Commission must instead identify affirmative statutory authority for preemption, which it has failed to do,” the city and state officials write.

After the FCC voted to repeal the Obama-era rules, at least 10 states took action to reinstate net neutrality rules. Those initiatives are being challenged in two states -- California and Vermont. The outcome of the appeal over the decision to revoke the Obama-era regulations is expected to also play a role in the fate of those states' net neutrality rules.