The FCC’s toughening up of regulation to enforce net neutrality always looked like inviting legal challenges and now the first two lawsuits have been filed.
The cases, brought by a broadband industry group and an independent Texan broadband firm, seem very much intended as first strikes, coming before the new rules take effect. Many industry analysts believe similar cases will come from cable and cellphone industry groups later on, though Verizon isn’t expected to launch a challenge of its own.
The legal action relates to the FCC’s new rules on net neutrality (which it terms ‘open internet’) and more significantly, its decision to reclassify broadband as coming under Title II of the 1934 Telecommunications Act rather than its original classification as Title I.
That means treating it as a telecommunications service (similar to fixed-line telephones) rather than an information service, in turn giving the FCC greater regulatory scope. Previous attempts to enforce net neutrality were scuppered by legal rulings that doing so went beyond the boundaries of Title I powers.
For its part, the FCC says that it won’t regulate broadband to the same degree as fixed-line phones and has specifically ruled out any price capping. It says it will only regulate to enforce three key principles: no blocking, no throttling and no paid prioritization. The only exceptions are for illegal content.
Reclassifying broadband has simply changed the subject of the legal battles, which are now mainly about whether or not the FCC has the authority to make such a reclassification. The US Telecom challenge is full of objections to the move:
on the grounds that it is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; violates federal law, including, but not limited to, the Constitution, the Communications Act of 1934, as amended, and FCC regulations promulgated thereunder; conflicts with the notice-and-comment rulemaking requirements of 5 U.S.C. § 553; and is otherwise contrary to law.
Technically the rules aren’t yet in force. Although the FCC has published the wording on its website, they won’t take effect until 60 days after they’ve been formally published in the Federal Register. There’s a 10 day period after publication for any legal challenges, though there’s some dispute about exactly what counts as “publication” for this purpose, hence these two suits coming in early.
Given that the issue is now more about the law-making process than the actual policy, it seems inevitable one of these cases will wind up in the Supreme Court. That raises questions about whether any action the FCC takes against firms it considers to be breaching net neutrality will hold up in the long run.
There’s also the possibility that the issue will be determined in Congress rather than courtrooms. Some politicians have talked about trying to pass a law that could specifically classify broadband under the original Title 1 category, specifically rule out net neutrality rules, or specifically bar the FCC from reclassifying services. At the moment it seems highly likely President Obama would veto such a bill if it did pass both houses.