FCC Vote Imposes Net Neutrality Rules Sure to Face Legal Blockade

NEWS ANALYSIS: The Federal Communications Commission did exactly what President Obama requested. But that doesn’t mean he got enforceable network neutrality rules.

FCC Neutrality Vote 2

As I write this, my email is filling up with self-serving statements that are either cheering or blasting the Feb. 26 vote approving the regulation of the Internet under Title II of the Communications Act.

The statements by most of the supporters of the FCC's vote indicate they seem to be under the impression that this change will somehow make the Internet a better place.

Opponents are decrying the vote and warning about all sorts of doomsday scenarios that will forever end Internet as we know it. Meanwhile, FCC Chairman Tom Wheeler, in his closing remarks during the contentious FCC meeting, finally predicted correctly what would actually happen, which is that the Internet would not change.

However, while the Chairman may be right about the ultimate outcome, it's not for the reasons he voted for the new rules. What will really happen is that the federal courts will begin to fill up with lawsuits demanding that the FCC action be overturned. Those lawsuits will be filed by ISPs large and small and very likely by some major customers of those ISPs.

The short- term result will be a secure period of full employment for legions of communications lawyers working in the Washington, DC suburbs. While it's not clear that any of them will succeed in securing an injunction that will force a halt to the FCC's Title II plans, the end result will be the same. Somewhere buried deep within the 317- page FCC order there will be enough to ensure judicial action by a federal judge somewhere in the country.

"I think it's pretty certain that if the order is 317 pages of justification for Title II, there's a high likelihood that some portion of the order will be struck down," predicted Richard Bennett, a visiting fellow at the American Enterprise Institute. Bennett said that while there are parts that will survive a challenge, most won't, especially if the challenge includes the procedural side of the question.

Bennett pointed out that one area that the FCC apparently missed was compliance with the Administrative Procedures Act, which among other things requires that the agency hold public hearings on the rule that it's proposing. While there were hearings, they were on a previous set of rules that existed before the White House inserted itself into the process and directed a new approach.

It's a safe bet that Congress will get involved in how the FCC went about the Title II question and start holding hearings. Eventually, Bennett predicts that Congress will withhold funding for enforcement of Title II regulation of the Internet and tie that to a bill the White House can't refuse to sign, such as the annual budget bill.

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...