By Brennen Johnson

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.  Continue reading →