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.
Lawsuits Aim Pre-emptive Strike on Net Neutrality Rule Enforcement
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.