FCC Takes Defensive Legal Stance in 300-Page Open Internet Order

By Wayne Rash  |  Posted 2015-03-14 Print this article Print
FCC Neutrality Order

NEWS ANALYSIS: The Federal Communication Commission's 300-page Open Internet Order is full of legal justifications in clear anticipation of the legal challenges to come.

The Federal Communications Commission released its anticipated Open Internet Order on March 12, and as indicated during the commission's vote in late February, the order was very long—well over 300 pages—and filled with defensive language.

In fact, the actual content of the order itself was quite brief. Nearly all of those hundreds of pages consisted of references to the various sources of legal authority, which the FCC says allows it to impose net neutrality on Internet service providers.

However, the entire document is so lengthy that the FCC also published a five-page summary to explain it, a separate fact sheet that addresses opponents' claims that the commission believes are wrong, and a blog entry explaining how the FCC went about the decision-making process that was written by the FCC's general counsel.

There's even more explanation on the FCC Website, but, by the time you finish reading everything, the first legal challenges will already have been filed.

And this order, if it's nothing else, is all about legal challenges. When FCC Chairman Tom Wheeler announced the order, he specifically predicted challenges. Many opponents have predicted legal challenges. The vast majority of the content of the order itself is intended as a bulwark against challenges.

The truth is, unfortunately, that the more material you provide the opposition in a situation like this, the more there is to challenge. It's a sure bet that somewhere deep within those hundreds of pages of defensive language there will be something that a good communications lawyer can object to in federal court.

In addition, this new Open Internet rule is to some extent in opposition to net neutrality legislation that's currently working its way through Congress. The first hearings have already been held and more are scheduled later this spring.

The legislation is bipartisan and has broad support. If it passes the House and Senate by large margins, which it may, it's even possible there is enough support to overcome a White House veto. That legislation would preempt any rule that the FCC might make.

That legislation is already gaining support in response to the FCC's action. The Telecommunications Industry Association, the association representing network operators and equipment suppliers went on record almost immediately after the order was announced opposing it and backing the legislation instead.

"The FCC order confirms that Title II is a Trojan horse that will open the door to heavy government control of the Internet and create marketplace uncertainty," said TIA CEO Scott Belcher in a prepared statement.

"With Title II in place, there is little to stop future commissioners from instituting government price controls or other market-distorting regulations. The FCC's promise of a light-touch approach is just that—a promise. There is too much at stake to allow the future of the Internet to rest upon a simple promise."


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