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.
FCC Vote Imposes Net Neutrality Rules Sure to Face Legal Blockade
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.
