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A group of cable companies, ISPs and industry associations has filed a formal motion with the Court of Appeals for the District of Columbia to stay the implementation of the Federal Communications Commission’s order to place Internet access under Title II of the Communications Act, a move predicted in this column just a few days ago.
The industry group wasted no time to head to court after the FCC refused its petition seeking the same thing that they are heading to court to obtain.
The stay alleges that the FCC violated the Administrative Procedures Act, Congressional intent, FCC precedent and a variety of laws, including the Communication Act, when the agency acted to move Internet access to Title II. In addition to requesting a stay, the motion also requested that any hearing be expedited if the stay is not granted.
The petition for the stay was a consolidated effort made after the court directed the petitioners to present their case in a single motion, rather than the separate motions that they had originally planned.
However, the petition is fairly broad since it must convey the concerns of a group of diverse organizations, ranging from the CTIA to US Telecom and AT&T. The potential damages quoted range from pole connection charges and new taxes to violations of the law and arbitrary action. A wide variety of real and anticipated harmful events are listed. The petition to the court is a laundry list of grievances.
Now that the petition has been filed, what happens next will matter a lot to future of the Internet, but as is frequently the case when the government gets involved, that future could be rife with unintended consequences. Depending on whom the court sides with on these claims and counter-claims, the Internet could remain alive and vibrant, or the once-bright promise of a free and open Internet could dim with network congestion and fees.
It’s also a question of whom you can believe, if indeed you can believe anyone. The petitioners say they’re not opposing net neutrality, but rather the reclassification of the Internet to Title II, which is the same law that controls common carriers, such as phone companies.
“This reclassification does not serve the public interest,” said US Telecom president Walter McCormick in a prepared statement, “but unlawfully paves the way toward expansive government management of the Internet. The facts show the FCC had no adequate legal basis for reclassifying broadband Internet access service as a Title II utility telecommunications service. The order does not provide a solid legal basis for overriding the governing statute and decades of commission and court decisions that contradict this changed classification.”
McCormick said that the reclassification would place unreasonable burdens on everyone involved and that it would raise expenses and taxes to ultimately hurt Internet users.
Cable Companies, ISPs Ask Court to Block FCC Title II Neutrality Rule
However, as you might expect—this being Washington—not everyone agrees. Ed Black, CEO of the Computer and Communications Industry Association, said the petitioners shouldn’t expect success in their quest to keep the FCC from implementing the change to Title II. “I think it’s unlikely that a stay would or should be granted,” Black said. “On the merits of the case, I think they are likely to lose and I think claims of irreparable harm are insufficient and unconvincing.”
Black said that what’s really going on is that the petitioners are trying to hold on to legacy power. “That’s why it’s important not to have a stay,” he said. He said the petitioners are trying to restore things to the way they used to be rather than moving toward the future.
“It’s a disappointment that a number of these plaintiffs continue to try to look backward and not embrace the new dynamic Internet digital world and compete on the merits in that world, rather than trying to re-establish a system where their power and domination of assets can curtail innovation.”
The unfortunate reality isn’t so much whether the petitioners have facts on their side—which, to some extent, they do—nor whether Black is correct in his belief that they’re trying to return to the past, which is probably true. The unfortunate reality is that, regardless of how this eventually turns out, the real victim will be net neutrality itself.
The petitioners have also filed a series of lawsuits in three different federal courts asking that the reclassification of Internet access be overturned. Once the petition for a stay is dispensed with, and regardless of who wins there, the next step will be motions to combine the cases into one, or at least, to move all the cases to a single court. Nothing will move forward until that motion is adjudicated.
Eventually, the consolidated lawsuit will be heard on its merits. That alone could take years. Then there is a high probability that the decision, one way or another, will eventually end up before the Supreme Court, taking several years to wend its way through the Appeals Courts.
During that time, for good or ill, Congress will likely to be working on other net neutrality legislation. Depending on what’s in that legislation, it may kick off yet more litigation and appeals.
Probably the only sure way for the net neutrality issue to reach some resolution is for Congress to pass net neutrality legislation by a majority large enough to overcome a presidential veto. However, considering the present collection of conflicting interests in Congress, that isn’t going to happen.
So right now, the only thing we have is uncertainty, and unrelieved uncertainty is the surest way to kill net neutrality.