Net Neutrality Hit with Flood of Legal Challenges

by Matt Klassen on April 16, 2015

Earlier this week the Federal Communications Commission’s rules for establishing a free and open Internet were published in the Federal Register, a move that pushes them one step closer to implementation. Unfortunately for the FCC, publishing Net Neutrality standards in the Register also means companies can officially start their legal challenges, and they certainly didn’t waste any time.

As we all expected, the broadband industry unleashed a torrent of lawsuits against the FCC this week, as both providers and industry trade groups are challenging the legal basis for the FCC to implement such regulations on wireless service, arguing that the FCC does not have the authority to reclassify broadband as a public utility, thus the entire foundation of the latest iteration of Net Neutrality lacks legal footing.

But amidst the challenges to the FCC’s legal authority to reclassify broadband as a public utility, the broadband industry is attempting to weave its own intricate web of propaganda, publicly stating that it now has no issue with Net Neutrality—in fact it welcomes the proposed regulations—it only has issue with the foundation that makes Net Neutrality legally enforceable in the first place.

The FCC now faces 6 separate lawsuits. On Tuesday the mobile trade group CTIA filed a suit, as did lobby groups, the National Cable and Telecommunications Association and the American Cable Association, which represents smaller cable companies. In late March telecom industry group USTelecom and diminutive Texas-based Internet service provider, Alamo Broadband, filed their own respective suits against the FCC, and yesterday AT&T piled on with its own independent legal challenge.

As we know, the proposed rules forbid broadband providers from unwarranted network management, including blocking, throttling, or otherwise slowing services or applications. Further, the rules prevent providers from imposing a tiered service model, offering so-called fast lanes for companies who are willing to pay more for faster data speeds. But in this latest round of legal challenges to Net Neutrality, it’s not the rules themselves the industry is taking issue with, but the authority of the FCC to establish the legal foundation it needs to enforce the rules in the first place.

“This appeal is not about Net neutrality but the FCC’s unnecessary action to apply outdated utility style regulation to the most innovative network in our history,” Michael Powell, the NCTA’s CEO, and a former chairman of the FCC, said in a statement. “The FCC went far beyond the public’s call for sound Net neutrality rules. Instead, it took the opportunity to engineer for itself a central role in regulating and directing the evolution of the Internet.”

As I’ve said before, however, the industry is trying to save face by ostensibly embracing the Net Neutrality regulations, arguing now that the reclassification process is not legal. Of course previous legal challenges have established that the FCC needs reclassification to legally enforce open Internet standards, so once the reclassification is thrown out, so is Net Neutrality.

While parties who oppose the FCC’s proposed legislation now have 60 days to challenge it in the Court of Appeals, the FCC itself is confident its regulations will stand up to any such legal wrangling. “As Chairman [Tom] Wheeler has said, we are confident the FCC’s new Open Internet rules will be upheld by the courts, ensuring enforceable protections for consumers and innovators online,” said Kim Hart, an FCC spokeswoman.

Given that the FCC was encouraged to pursue reclassification as the only means by which to establish legal footing for such regulation by a judge in the last legal challenge, I have to say it seems unlikely the FCC’s reclassification will be overturned. Should the unlikely happen, however, look for the broadband industry’s sudden warm embrace of the actual Net Neutrality regulations to turn distinctly cold as well.

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Written by: Matt Klassen. www.digitcom.ca. Follow TheTelecomBlog.com by: RSS, Twitter, Facebook, or YouTube.

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