Fwd: FreePress is suing the FCC. Here's how the process works.

["Dave Farber" <dave () farber net>]

---------- Forwarded message ---------
From: Kimi Wei <kimiwei88 () gmail com>
Date: Fri, Dec 29, 2017 at 5:36 PM
Subject: FreePress is suing the FCC. Here's how the process works.
To: David Farber <dave () farber net>


For the list. Happy New Year, Doc and friends!
Kimi

https://www.freepress.net/blog/2017/12/22/were-suing-fcc-heres-how-it-works

We're Suing the FCC. Here's How It Works.
Amy Kroin
Matt Wood

December 22, 2017

We’re taking the FCC to court.

We’re not alone: Right after Chairman Ajit Pai and his Republican
colleagues voted to destroy Net Neutrality last week, attorneys general
from at least nine states plus the District of Columbia indicated their own
plans to sue, with New York State Attorney General Eric Schneiderman
leading the charge.

The goal: to restore the Net Neutrality rules and their strong foundation
in Title II of the Communications Act.

Here are the answers to questions you might be thinking about.

Are the Net Neutrality rules already gone?
They’re still in force, but not for much longer. As soon as the FCC
publishes its so-called “Restoring Internet Freedom Order” in the Federal
Register and gets final approval for its decision, companies like AT&T,
Comcast and Verizon will be free to block or discriminate against any
content, apps and online services they choose.

That includes any political speech they disagree with — a disturbing
prospect given how many basic rights are under attack right now.

How soon can you win a legal victory and end this nightmare?
The soonest Free Press can file in court is after the order is published,
either by the FCC itself or in that Federal Register. (There are some
complicated timing rules that can apply differently to different parts of
the FCC’s vote, so that’s why there’s some flexibility.)

Once that publication happens, we’ll file within 10 days — a timeframe set
for making a first appearance and starting the process to determine which
federal appeals court will hear the case. Wherever and whenever we go, this
first filing will just be an initial declaration of our intent to seek a
review of the FCC’s actions in that appeals court.

There are likely to be several challenges, or maybe even several dozen, and
they could be filed in different courts. Once the challenges all get
consolidated into a single case and courtroom, and this procedural phase is
over, that’s when there will start to be consideration of the merits — or
rather, the lack thereof — in what the FCC did.

What happens after that?
Next we’ll file our brief, which will present our argument for why Title II
and the Net Neutrality rules built on it should be restored. This filing
will probably happen in May or June at the earliest, but the timing depends
on the procedural phase discussed above — how many parties there are in the
case, how long it takes to choose the venue for the litigation, and how
easy it is to settle any procedural arguments that may come up during that
shaking-out period.

So are you filing your own lawsuit, or are you collaborating with other
groups or with the attorneys general from these states that are suing?
In these big appellate cases over federal-agency decisions, every
challenger still tends to file its petition for review on its own or in
small groups. But after the initial flurry of filing these preliminary
requests, the court tends to group together the parties on each side of the
issue.

Either way, whether all of the parties challenging the FCC’s ruling are
part of one brief or several, we’ll definitely talk to, coordinate with and
collaborate with all of the other parties that share what the courts call a
“common interest” in the case.

OK, so what happens after you file your brief?
We’ll make our oral arguments, probably in the fall, but again the timeline
could speed up or slow down depending on the pace the judges set. Appeals
courts don’t have juries; instead, cases are typically heard first by a
panel of three judges.

During oral arguments, we’ll present a detailed overview of the arguments
we made in the briefs, explaining why the FCC was wrong to overturn the Net
Neutrality rules.

We’ll discuss the legal framework of Title II, and how this FCC read the
law wrong. We’ll talk about the agency’s mistakes in taking away the rules.
We’ll skewer Chairman Pai’s deeply flawed legal reasoning on several
points. We’ll highlight how he refused to even consider any evidence that
contradicted his (false) claim that the Net Neutrality rules harmed
investment.

And we’ll also focus on process fouls in the FCC’s rulemaking, like how the
agency took no action even after it became clear that fake and fraudulent
comments had been submitted — some using the names of people who are no
longer alive.

All in all, we’ll underscore his absolute contempt for public input from
the millions of people across the country who fought to preserve the rules.

The court could deliver its ruling by the end of 2018 or the beginning of
2019, but it all depends (once again) on how fast the judges speed the
process along.

I’m freaking out. What are our chances in court?
We’ve got a very strong case. The rules the FCC just gutted were based on
Title II of the Communications Act, which is the strongest possible legal
foundation for Net Neutrality, and it’s also the right law for broadband
internet access.

It’s the best reading of the legal definitions that Congress applied to
communications services and technologies, and the Pai FCC had to do some
serious gymnastics to pretend otherwise. And the agency was in such a rush
to make that disastrous decision that it made a bunch of procedural
mistakes and unforced errors along the way.

We’ll use all of that in court to restore the rules and return to the right
law.

This will be a long battle, so chip in whatever you can to help fund the
fight. Thank you!


Kimi Wei
kimi () thewei com  @kimiwei
facebook.com/thekimiwei
862-203-8814



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