Lawsuits Aim Pre-emptive Strike on Net Neutrality Rule Enforcement

By Wayne Rash  |  Posted 2015-03-24 Print this article Print
Net Neutrality lawsuits

The likelihood that at least one of those courts will order a stay on the rules is nearly certain. Effectively, the FCC's vision for net neutrality will be on hold for years.

What's worse is that the FCC could very well lose its net neutrality fight in one or more of those court challenges. If that happens, it could take years for net neutrality to be sorted out in the courts, if it ever is.

The big problem for the FCC is that there's a lack of enabling legislation giving it the authority to regulate net neutrality. When the courts overturned the FCC's first try to have a "light touch" with regulation after the agency was sued by Verizon, the court gave the FCC some guidance to find ways in which net neutrality could be preserved. Unfortunately, the Title II choice wasn't part of that guidance.

Since then, a bipartisan group of lawmakers, headed by Sen. John Thune, R-S.D., started working on legislation that would give the FCC the legislation it needs and that would preserve net neutrality in much the same vein as the agency was following before the White House directed the chairman of the FCC to use Title II instead. That legislation is slowly working its way through Congress, and it would solve most of this thorny issue.

Unfortunately, some Democrats are quibbling that it limits the FCC too much, and some Republicans think it doesn't limit the FCC enough. While Congress ponders those issues, some more serious challenges to the ability of the FCC to bring about net neutrality are gaining traction, and they have the ability to make all of the court challenges moot.

Representative Marsha Blackburn, R-Tenn., has introduced a bill that would prevent the FCC from reclassifying broadband so that it falls under Title II and would also prevent it from doing the same thing under a different name. Meanwhile, FCC Commissioner Ajit Pai, one of the two Republican FCC commissioners, has asked Congress to eliminate all funding for a variety of actions, notably Internet regulation, in testimony during budget hearings.

What's happening here is that Congress is searching for a way to prevent the FCC from enforcing Title II reclassification, even if it means micromanaging the agency.

While there's sure to be a fight before either proposal makes it through Congress, there's enough pushback from the Republican majority to create some serious problems for FCC Chairman Tom Wheeler and his plan to force net neutrality on the Internet.

The sad thing is that it was the Republicans who were working to give Wheeler and the FCC exactly the legislation that the agency needed to withstand a court challenge until the White House called for the FCC to place broadband regulation under Title II.

Perhaps there's still time to try again on that legislation, but as every day passes it looks less likely. Instead, by striving for overreach, the FCC may have ensured that it cannot succeed.



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