The Federal Communications Commission (FCC) published its new Net neutrality rules to the Federal Register on Monday, April 12, meaning the rules will go into effect 60 days from that date, on June 12. But lawyers are already getting involved. So far, two ISPs and four trade groups have filed six separate lawsuits.
The suits are meant to challenge the FCC's decision to reclassify broadband as a common-carrier service under Title II of the 1934 Communications Act, and among other things they accuse the agency of not following administrative procedure. USTelecom, which filed one of the lawsuits, claims the agency didn't give adequate notice that it was planning to reclassify the service. The suits also claim the FCC didn't develop a sufficient record to support reclassification and that it violated the constitutional rights of the ISPs.
AT&T Goes It Alone
Also this week, AT&T filed suit against the FCC requesting that the court declare unlawful the set of rules that proposes to reclassify AT&T and other broadband and wireless service providers as telecommunications services instead of information service providers.
Unlike Verizon, Comcast, and other ISPs, which have chosen to take FCC to court under the representation of their respective industry associations, AT&T decided to sue the commission on its own. In its petition for review filed before the U.S. Court of Appeals for the District of Columbia Circuit, AT&T said that the Net neutrality rules are "arbitrary, capricious, and an abuse of discretion."
Subsequent petitions for review will probably claim that the FCC doesn’t have the authority to reclassify ISPs as common carriers; that it violated rule-making procedures by failing to provide proper notice that it might reclassify ISPs under Title II; or attack specific elements of the new rules, such as the ban on so-called Internet fast lanes.
Companies are hurrying to file their lawsuits even though they have 60 days to do so because suits filed within the first 10 days are considered simultaneous and go into a lottery to determine where the case will be heard. Challenges to the Net neutrality rules will most likely end up before the circuit court of the District of Columbia, so assigning cases to another circuit will mean more procedural steps, and thus a greater delay in getting resolved.
Right now, the broadband industry wants to delay the process as long as possible, according to observers. Challenges to the FCC’s new open Internet rules don’t have a great chance of succeeding, but if the industry can delay the implementation of these rules, companies will have more time to adapt their business models to the new regulatory reality.
The broadband and wireless industries will continue to argue that with strict regulation by the FCC, ISPs will be less likely to invest in better networks and other innovations and will be more prone to tariffs and taxes imposed by the FCC. The FCC has denied that claim.