ISPs to FCC: No, Seriously, We Will Sue If You Use Title II Like The White House Just Asked

Earlier today, the battle over new net neutrality regulations took a surprising shift as the White House very publicly recommended the FCC take the Title II reclassification approach. And while consumer advocates are thrilled, the businesses that make their money charging you for internet access are about as pleased as you’d expect. Which is to say: even if the FCC somehow jumped on Title II tomorrow, there’s a long, ugly legal fight brewing.

Verizon, which has already threatened to sue the FCC if Title II touches any part of the internet, would like to remind everyone that they will sue the FCC if Title II touches any part of the internet: “Reclassification under Title II … would be a radical reversal of course that would in and of itself threaten great harm to an open Internet, competition and innovation. That course will likely also face strong legal challenges and would likely not stand up in court,” they write, before encouraging the FCC to stick with section 706, which “major broadband providers and their trade groups have conceded” the FCC can do.

Verizon, however, will not be alone in hauling the FCC to court if the commission does its actual job. In their statement, AT&T calls Title II regulation, “a mistake that will do tremendous harm to the Internet and to U.S. national interests.”

AT&T adds that (despite evidence to the contrary) net neutrality is a “hypothetical problem posed by certain political groups whose objective all along has been to bring about government control of the Internet.” And in the vein of keeping government out of the internet, AT&T says, such a decision should rest with Congress and not with the “unelected” FCC.

They close with their own legal threat: “If the FCC puts such rules in place, we would expect to participate in a legal challenge to such action.”

Comcast is equally pleased with the strong potential of Title II becoming reality. They join with AT&T in saying that Title II needs to be a choice made by Congress, and not the FCC. “This would be a radical reversal that would harm investment and innovation,” Comcast exec David L. Cohen said, “as today’s immediate stock market reaction demonstrates. And such a radical reversal of consistent contrary precedent should be taken up by the Congress.”

Comcast, notably, did not threaten legal action in their initial statement, as so many other companies did — perhaps because they want the FCC on their good side to approve their merger with Time Warner Cable.

And for all the ISPs large and small that didn’t issue their own statements, the National Cable & Telecommunications Association — the industry’s big trade group — also condemned the White House statement, saying, “this tectonic shift in national policy, should it be adopted, would create devastating results.”

They, too, seem ready to see the FCC in court: “There is no substantive justification for this overreach, and no acknowledgment that it is unlawful to prohibit paid prioritization under Title II. We will fight vigorously against efforts to impose this backwards policy.”

But this morning’s statement was from the White House. It’s the FCC that has the ultimate say. That leaves FCC chairman Tom Wheeler, who spent the morning trapped next to his Mini Cooper when pro-regulation protesters descended on his house.

The FCC’s official statement says only that “we will incorporate the President’s submission into the record,” as with every other public comment.

But Wheeler’s statement does make one thing clear: the issue is complicated. “We found we would need more time to examine these” various approaches, Wheeler writes. That pushes back the timeline for a likely new rule from the end of this year to sometime in 2015 instead.

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