Last month, the Federal Communications Commission published its new net neutrality rules in the Federal Register. In response to the new rules, there has been an onslaught of legal challenges brought by telecom companies to defeat the rules before they go into effect mid-June. Within several days of publication, seven companies filed suit against the FCC over the rules. Rather than attacking the substance of the rules outright, the companies are instead seeking to block procedural aspects of the rules. The companies challenge both the FCC’s reclassification of the internet as a “public utility” as well as the legal standards and mechanisms that would allow the FCC to enforce the new rules.
By classifying broadband internet as a public utility, the FCC gains broader regulatory powers over internet providers under Title II of the Communications Act of 1934. The reclassification addresses the FCC’s January 2014 failed attempt to enforce net neutrality. The FCC’s rules at that time were struck down in large part because broadband internet was not classified as a public utility, implying that the FCC could not regulate internet providers in the same broad manner as other utility providers. Speaking for the Court in that case, D.C. Circuit U.S. Court of Appeals Judge David Tatel wrote: “[g]iven that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such.” These broader powers significantly fortify the FCC’s position to protect its net neutrality rules from legal attack. However, if telecoms can successfully challenge the FCC’s reclassification of the internet as a public utility, then it seems a near certainty that the FCC’s current attempt at ensuring net neutrality will fail for the same reason it did in 2014.
In addition to attacking the reclassification, telecoms have also attacked the rules allowing the FCC to discipline conduct that “unreasonably interferes… or unreasonably disadvantages” consumers from accessing the internet “edges [read advantages] providers to access consumers.” Some telecoms claim that they support core principles behind net neutrality, indicating that they have not directly attacked the big three of net neutrality—namely no blocking, no throttling, and no paid prioritization. Nonetheless, consumers should question the telecoms’ sincerity because their current attacks, if successful, will strip the FCC rules of any mechanism to enforce those core principles. While it is reasonable that companies would fear the possibility of being subject to lawsuits, forfeiture penalties, license revocation, or other sanctions, stating loyalty to broad principles while simultaneously attacking the mechanisms of their enforcement strongly smacks of lip service.
Last Friday, in addition to telecoms attempts to defeat the new rules outright, CTIA, AT&T, Wireless Internet Service Providers Association, and Centurylink filed a joint request to stay the new rules from coming into effect until a court can rule on the slate of currently pending lawsuits targeting the new rules. The petitioners argue that the regulation will negatively impact smaller providers because they “don’t have the means or margins to withstand a regulatory onslaught.” They also argue that the new regime will force many providers to “scale back developments to rural communities and reverse or limit prior investment decisions.” If the request is granted, the lengthy process of litigation would prevent the new rules on net neutrality from going into effect for many years, if at all.