On Monday, USTelecom and Alamo Broadband filed the first of what is expected to be a flurry of legal challenges against the FCC’s decision last month to reclassify broadband Internet services as telecommunications services pursuant to Title II of the 1934 Telecommunications Act.
Eleven days after the FCC publicly released the 300-plus page order, USTelecom, a trade group representing many of the top Internet service providers (ISPs) in the U.S., filed suit in the D.C. Circuit Court. At the same time, Alamo, a Texas-based ISP, submitted its petition for review to the Fifth Circuit Court of Appeals in New Orleans. Both appellants claim that the order— which prohibits the blockage, throttling and prioritization of lawful web content and imposes Title II common carrier regulations on broadband ISPs with FCC forbearance—is “arbitrary, capricious, and an abuse of discretion” within the meaning of the Administrative Procedure Act (APA). Although the 60-day filing window for judicial appeals of FCC rulemaking orders does not open until such orders are published in the Federal Register, USTelecom and Alamo told both courts that they were filing at this time “in an abundance of caution,” as the FCC outlined the Title II rules in an accompanying declaratory ruling for which the appeals period ends on the tenth day after FCC release. Because the FCC posted the Title II order to its website on March 12, the filing deadline for the declaratory ruling portion of that order would be March 23. The order, meanwhile, has yet to be published in the Federal Register.
Asserting, “we do not believe the [FCC’s] move to utility-style regulation invoking Title II authority is legally sustainable,” USTelecom President Walter McCormick maintained, “we are filing . . . to protect our procedural rights in challenging the recently-adopted open Internet order.” A spokesman for the FCC countered, however, that “the petitions for review filed today are premature and subject to dismissal.”