Verizon: We Will Sue FCC Again If “Hybrid” Net Neutrality Happens

Verizon really does not care for net neutrality rules. They successfully sued to get net neutrality overturned, but it just won’t stay dead enough for them. They’ve tried firmly insisting that everything is fine as is, and yet the FCC keeps actually moving toward enacting some new regulation in the few remaining weeks of the year. So now Verizon is making it very clear: if the FCC tries to make any part of the internet a common carrier, Verizon will drag them through court. Again.

Verizon shared this information in a corporate blog post called, “Diminishing the Prospects of Further Net Neutrality Litigation,” and it is exactly the threat it sounds like. In the post, Verizon general counsel Randal Milch very carefully explains that if the FCC actually attempts to pass and enforce any strong net neutrality protection, Verizon will haul them into court and fight tooth and nail to get it overturned.

If the FCC classifies broadband as a Title II service, Verizon says, the ISPs (meaning Verizon) “will have no choice but to fight the sudden reversal of two decades of settled law.” By doing so, the post continues, “the FCC will have increased both the likelihood – and the likelihood of success – of any legal challenge.”

In other words, if you regulate us, we will sue you. And we think we will win.

This tactic has been a rousing success for Verizon in the past. Verizon is the company that filed a lawsuit against the FCC over their Open Internet Rule — that’d be net neutrality — back in the dawning days of 2011, before it even went into effect. Three years later, in January of this year, the suit came to fruition for Verizon when an appeals court agreed the FCC had mis-regulated, and struck down key portions of the rule.

As a result, we’ve spent 2014 in a massive, uncertain back-and-forth as the FCC scrambles to come up with some kind of new regulation. The commission’s original proposal, which they voted on in May, has proven less than popular. 3.9 million people — a new record — wrote in comments to the FCC about the proposed rule, mostly against it.

Advocacy groups like Common Cause, Public Knowledge, Free Press, and Consumers Union (the advocacy arm of our parent company, Consumer Reports) have responded by pushing the FCC to go back and fix the original legal loophole in the open internet rule by classifying broadband services as a Title II “common carrier,” in the same way that landline phone data is treated. Millions of the comments to the FCC also asked the commission to take the Title II approach.

FCC chair Tom Wheeler has said more than once that he considers Title II reclassification on the table as a last resort, if other proposals fail. But first, the FCC is trying pretty much every other proposal it can think of.

This is where Verizon comes back in: they emphatically do not want to be regulated as a common carrier, not in any way, shape, or form. In fact, any regulation is too much regulation for Verizon. In March, they argued to the FCC that everything is fine and dandy in internetland, because they said so. They admonished the FCC not to regulate anything until after actual harms had already taken place — which they won’t, Verizon said, because why would Verizon harm their customers who they love in such a competitive market as this?

A few months later, in their first round comment on net neutrality to the FCC, Verizon described Title II as an “arcane regulatory framework” that was “crafted for 19th century railroad monopolies and the early 20th century one-wire telephone world.”

Basically, they argued, using Title II to regulate broadband carriers as carriers and not as services would throw the internet back to the Stone Age we all lived through in the 1980s and 1990s. Title II has “no place in today’s fast-paced and competitive Internet marketplace,” Verizon wrote, “and the threats posed by this approach would not likely be confined to broadband providers but would spread inevitably to other Internet sectors.”

In the face of the massive negative feedback the May rule proposal generated, the FCC is now rumored to be working on a new hybrid approach. If the new proposal is as “sources” say, it basically takes the worst of the Section 706 approach, mixes it with the worst of the Title II approach, and creates a hot mess that basically makes everyone unhappy.

That group of the deeply unhappy includes Verizon. Verizon says that not only will the mixed approach make greedy consumer advocates will sue “to keep their fund raising pipeline flowing,” but also that the FCC will “face strong challenges on the partial move to Title II from those investing in networks.”

“Like a full move to Title II,” Verizon concludes, “the hybrid approach also fairly guarantees litigation.”

Of course, Verizon could also drastically diminish the chance of the FCC becoming embroiled in lawsuits by not repeatedly suing to prevent regulation that protects consumers. But that particular card seems not to be in their hand.