Lawsuits Aim Pre-emptive Strike on Net Neutrality Rule Enforcement

NEWS ANALYSIS: The first two of what could become a barrage of lawsuits are challenging the Federal Communications Commission's newly approved network neutrality rules.

Net Neutrality lawsuits 2

Two organizations filed suit in federal courts on March 23 seeking to block the Federal Communications Commission's decision placing broadband regulation under Title II of the Communications Act. One of the suits wants the federal courts to stop it immediately.

That one, from Texas-based Alamo Broadband, is asking the federal court in New Orleans to block the ruling, saying that it's arbitrary, capricious and exceeds the FCC's authority. The other, filed by USTelecom in the U.S. Court of Appeals for the District of Columbia, is more interesting since it's a precautionary filing, just in case the rules might be different from what everyone thinks they are.

To say that lawsuits were expected is an understatement. When the FCC wrote the order placing ISPs under Title II, the agency actually planned for such legal action, which is why the order is well over 300 pages long. Much of that length forms a formal legal briefing citing its authority under the law for the move. Not only did the FCC expect such suits, but the defense was written into the order itself.

The USTelecom filing is actually a Protective Petition for Review. In its filing, it says that it's bringing suit in an abundance of caution in case the courts decide that the FCC's rule is final on the day it's announced, rather than the day it's published in the Federal Register. Normally federal regulations are considered final the day they're published, not on the day that the agency actually takes action.

Because of the date of the filing, USTelecom asks for relief from the FCC's order if the courts regard the petition is timely. What this does is preserve the organization's place in line in case future court actions set the effective date as being on the day the FCC issued it.

Basically, the group isn't taking any chances that the FCC or the courts won't try to pull a fast one and allow the new rules to go into force before there has been any chance for legal arguments and judicial review.

For its part, the FCC has said that the legal action is premature and will be dismissed by the courts. That is the most probable outcome for Alamo Broadband, which will likely be told by the court that it can try again after the order is officially published.

However, the USTelecom filing is different. It's asking for action only if it's timely. If it's not timely, then nothing happens. But there's the possibility, probably remote, that it will become timely. If that's the case, then the filing is already in the court's hands, carrying with it the potential to legally block the FCC rules before they can be enforced.

In reality, this week's two filings are just the first trickle before the dam breaks. When the FCC's order is published in the Federal Register, expect lawsuits to start dropping on federal courts near and far within nanoseconds.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...