In February the FCC approved a new net neutrality measure in a 3-to-2 vote that would ban fast lanes and relabel broadband as a utility similar to water, gas and electricity by reclassifying broadband Internet as a telecommunications service rather than an information service under Title II of the Communications Act.
FCC Chairman Thomas Wheeler promised three “bright line” rules for the new regulations: (1) No paid prioritization favoring some Web sites over others, (2) no throttling of Internet traffic, and (3) no blocking of access to legal content.
After the new regulations were announced, just one question remained: Which entity would file suit to challenge the rules?
The answer: Two separate lawsuits, one by a major trade group representing some of the biggest players in the telecom industry, the other by a Texas-based ISP that serves about 700 subscribers and a bill, the Internal Freedom Act, introduced by Rep. Marsha Blackburn (R-Tenn) which specified that the FCC’s order “shall have no force and effect.”
The United States Telecom Association (USTelecom) filed its protective petition for review in the D.C. Circuit Court of Appeals, requesting that the federal appellate court “hold as unlawful, vacate, enjoin, and set aside” the FCC’s proposed regulations.
“USTelecom seeks review of the Order on the grounds that it is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act . . . 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 [the APA]; and is otherwise contrary to law,” the plaintiff alleged.
Similarly, Alamo Broadband petitioned the Fifth Circuit Court of Appeals to review the FCC’s order, which it said was issued “in excess of the Commission’s authority,” “contrary to constitutional right,” and was “arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act.”
The litigation is only the latest chapter in the saga of net neutrality.
On two prior occasions the FCC has promulgated regulations that ended in the courtroom. In the most recent effort, the D.C. Circuit found that the FCC exceeded its authority and struck down the regulation in January 2014.
When the agency thereafter indicated it was considering new regulations that would allow for “fast lanes”—where Internet service providers afford certain companies preferential treatment when they pay for faster service—a record-setting number of comments were filed, of which the majority were in opposition.
To read the petition in United States Telecom Association v. FCC, click here.
To read the petition in Alamo Broadband v. FCC, click here.
Why it matters: Litigation challenging the FCC’s new proposal was inevitable, but the plaintiffs may face a procedural problem, however, as they filed their petitions before the agency published its regulations in the Federal Register. USTelecom noted it filed its petition “out of an abundance of caution” and the procedural bump could be a minor hurdle. On the last go-around challenging the FCC’s rules, Verizon’s suit was initially tossed because it was filed early, but the company refiled and ultimately prevailed. Chairman Wheeler, for one, isn’t worried—he recently predicted that “the FCC’s new rules will be upheld by the courts.”