FCC Vote Imposes Net Neutrality Rules Sure to Face Legal Blockade

By Wayne Rash  |  Posted 2015-02-26 Print this article Print
FCC Neutrality Vote

Not everyone agrees that the Administrative Procedures Act was violated.

"This decision was developed after over a year of unprecedented input including a tsunami of comments and an exhaustive series of workshops and roundtables," said Cathy Sloan, vice president of the Computer and Communications Industry Association. "That's how the process should work. The process is pretty solid."

While there was a series of questions raised during the FCC meeting about the transparency of the process, that's not likely to be an issue that actually comes before the courts. For one thing, the FCC rarely comes completely clean on the rationale behind its actions before it makes them public and so far, that's passed muster in the courts.

But that doesn't mean that the Commission can simply do what it wants with total freedom. When the FCC was created and with subsequent revisions to the Communications Act, the Commission exists according to the rules that Congress created in its legislation. There are responsibilities and limits, and there are procedures that have stood the test of time and of the courts. But when those procedures are changed without clear rationale, then the FCC is inviting some form of action.

The sad truth is that every action of the FCC has a massive and profound reaction in terms of impact on the pocketbooks of a variety of major corporations. Those corporations generally don’t appreciate any impact that costs them a dime, and they'll go to great lengths to make sure that things go their way. This includes solving real or perceived problems through litigation launched by human waves of lawyers.

Those attacks don't always work out. As Sloan pointed out during an interview with eWEEK, AT&T resorted to the mass lawyer attack when it tried to merge with T-Mobile. But all that the company succeeded in doing is tying things up. The merger was never approved.

But in the case of the Title II vote, opponents don't need to overcome the FCC, all they need to do is delay implementation for a couple of years. A new president will be elected and be inaugurated in less than 24 months. Likewise a new Congress will be elected. It won't take much to change the makeup of the FCC.

Once there's a new FCC, the promises of the old one are out the window. A Republican-led FCC could eliminate network neutrality regulation altogether. A Democrat- led FCC could take another approach to net neutrality rules. Right now we don't know how or if that might happen, but it could.

Of course Congress could pass legislation defining exactly how the Internet would be run, likely with disastrous consequences, unintended and otherwise. In a few years the net neutrality advocates could very well find that they not only don’t have any semblance of neutrality, but they have the exact opposite. In the end, they would have lost the neutrality they so dearly wished for because the FCC played too loose with the rules and pushed so hard that something broke.




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