Verizon Suit, FCC Politics Could Block Net Neutrality Indefinitely

News Analysis: Verizon's lawsuit against the FCC is only the first in what is sure to be a flood of legal challenges to the commission's hastily approved net neutrality rules.

The suit by Verizon Communications against the Federal Communications Commission on Jan. 21, 2011, should come as a surprise to no one. The company has made no secret of its dislike for the FCC's involvement in the net neutrality issue, and most people expected that one of the major Internet carriers would take action. 

Since Comcast was occupied buying NBC Universal, that left Verizon as the likely choice. As a result, the company sued the FCC in the U.S. District Court for the District of Columbia, which is the same court that ruled against the FCC in the Comcast case that started this latest round of net neutrality machinations. 

In April, the court found that the FCC had overstepped its authority in trying to regulate how Comcast managed (and sometimes blocked) Web traffic on its network. In its suit, Verizon is claiming that the latest round of net neutrality rules is just more of the same thing-that if the FCC didn't have the authority in the Comcast case, it still doesn't. 

The FCC, of course, disagrees, and while the agency isn't speaking on the record, statements made at the time the net neutrality rules were adopted indicate that the commission thinks it has found a legal framework for regulating Internet delivery. In addition, the FCC has claimed that it has a congressional mandate to expand broadband Internet connections and to ensure that consumers have access to all legal Internet content. 

The problem with the FCC's position is that Congress didn't specifically give the FCC the authority to actually regulate how service providers deliver Internet content. Instead, the goal was to ensure availability, meaning that the FCC was tasked with making sure that poor, rural and other disadvantaged consumers and businesses weren't bypassed in a search for the best ROI. This appears to mean that while the FCC can require that an Internet provider must serve everyone in its area, it can't create specific rules as to how the ISP actually does that. 

The FCC's position wasn't helped by the manner in which its chairman chose to get his rules adopted. FCC Chairman Julius Genachowski took a number of dubious steps as part of the process. Those steps included withholding thousands of comments from the other (Republican) commissioners until only minutes before the comments period closed. Then when it came time to seek approval, Genachowski withheld the full text of the proposed rules until only a few minutes before they had to be voted on. None of the commissioners was given time to read the rules before the vote, and the result was two Democratic votes approving the rules, one Democratic vote with significant reservations and two Republican votes against approval.