[caption id="attachment_8787" align="aligncenter" width="620"] Net neutrality protestors. Photo: Diego M. Radzinschi/NLJ.[/caption] The pile of lawsuits against the Federal Communications Commission over its decision to overturn Obama-era net neutrality regulations has grown, with big-name technology companies banding together to file a petition in the U.S. Court of Appeals for the D.C. Circuit on Monday. Foursquare, Kickstarter, Automattic, Etsy, Expa and Shutterstock filed the action as members of the Coalition for Internet Openness, a pro-net neutrality group. They are challenging the FCC, which back in December opted to overturn the 2015 Open Internet Order, a set of rules that require internet service providers to treat all content equally without blocking or slowing down access to specific sites. General counsel from several of the companies involved in bringing the action spoke to Corporate Counsel on Tuesday about why they decided to take the leap. "Any time an agency puts out an order or a rule the Administrative Procedure Act generally and the Communications Act specifically lay out the procedure for a court to review those actions," Expa general counsel Michal Rosenn told Corporate Counsel. "So we worked with Steptoe & Johnson, which represents the coalition, and put together a petition."
Rosenn, who moved to Expa from Kickstarter in November 2017, said Expa and a number of companies have been discussing next steps since the FCC's vote to overturn net neutrality late last year.
"A number of us wanted to continue our forms of action to file this petition for the court to review the FCC's latest order," Rosenn said. "It was primarily Etsy and Kickstarter and us working on that, reaching out to other companies and filing a petition."
Etsy also plans to file its own separate petition in the D.C. Circuit, according to the Coalition for Internet Openness.
As for Shutterstock GC Heidi Garfield, she says her company has had an "avid interest" in defending net neutrality since the FCC's decision, and joined the plan to petition a few weeks ago.
Both she and Rosenn said their involvement in the suit stems, at least in part, from a desire to help their platforms' users. Expa is a network of entrepreneurs that links startups to resources and funding, and Shutterstock allows photographers to post stock photos online. Their users are competing for internet traffic with larger companies and artists, and usually don't have pockets as deep as their competitors'.
"Expa is a startup studio so we help the best entrepreneurs bring their ideas to life. We help them get resources and create, so those are exactly the people who depend most on an open internet, [those] looking to start new companies and explore new ways to challenge incumbent companies to bring new options to users and consumers everywhere," Rosenn said. "The only way they are able to succeed is if they are able to compete on a level playing field with the biggest companies."
If users can't financially compete to provide fast internet speeds to those who want access to their products or prevent their sites from being blocked, it could hurt both creators and businesses like Shutterstock, Garfield said.
"Repealing rules related to net neutrality could have a domino effect—reduction in content creation, reduction in ad dollars, reduction in access, rights and opportunities at every step of the chain," she explained. Paul Sieminski, the GC of Automattic Inc., says he's also heard concerns from content creators. Automattic is well known for Wordpress.com, which houses writing and blog posts from around the world. Sieminski says Automattic has spoken to representatives in Congress, which could still overturn the FCC's decision, and chose to join the petition as further action to restore net neutrality. "Our users, who are by and large smaller publishers, smaller bloggers, small businesses, they use our business to set up an online store," he said. "[These] people and businesses you can see being disadvantaged by a system where you essentially have to pay to access your end users." He said it's not clear how long it will take for the court to decide whether or not it will overturn the FCC's vote to repeal net neutrality, but it could be around a year. All three GCs said they hope the suit leads to a restoration of 2015's net neutrality laws. "We’re doing it for our own interests, but also the interests of all of our users and everybody, really, who cares about the internet being open," Sieminski said.
This group of companies and their GCs are not the first to take legal action against the FCC over net neutrality. New York-based video sharing website Vimeo Inc., whose GC Michael Cheah is a vocal net neutrality advocate, filed a suit against the FCC in February alongside Mozilla Corp.