17 Association of Research Libraries Research Library Issues 293 — 2018 Litigation Litigation appears to be the most likely avenue to regain strong protections for an open internet. Almost immediately following the FCC’s publication of its reversal of the 2015 Open Internet Order, numerous lawsuits were filed against the agency. Technology companies, state attorneys general of 21 states and the District of Columbia, and public interest groups were among those filing lawsuits in the Courts of Appeals for the DC Circuit and the Ninth Circuit. An unopposed motion to move the Mozilla et al. v. FCC case back to the DC Circuit, the court that upheld the 2015 Open Internet Order, was granted in March 2018. The benefit of the DC Circuit’s jurisdiction over Mozilla et al. v. FCC is that the DC Circuit already has a clear record to rely on, from its 2014 opinion in which it rejected the FCC’s 2010 Open Internet Order (because the FCC used common carrier regulations despite the fact that the agency had previously declined to classify ISPs as common carriers)4 to its 2016 decision upholding the FCC’s 2015 Order Internet Order (including reclassification of ISPs as Title II common carriers, reclassification of mobile broadband service, a ban on paid prioritization, and a General Conduct Rule to protect against future harms).5 The DC Circuit will likely point to its 2016 opinion and scrutinize the FCC’s complete reversal just one year later. Indeed, the DC Circuit’s 2016 opinion notes that the court’s role is “to ensure that an agency[‘s] . . . action is not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Court review of an agency’s decision is not to make policy decisions, but to ensure that the agency is acting within its authority. Additionally, the record before the DC Circuit demonstrates a clear need for regulations to protect against paid prioritization and blocking. Even in the 2014 case, in which the DC Circuit rejected the FCC’s 2010 Open Internet Order, the opinion found that ISPs had an incentive to discriminate against certain content and that the FCC’s findings were not “pure speculation,” as Verizon had asserted, but instead “based firmly in