It’s Almost Lawsuit Season: Broadband Trade Groups Prepping Their Legal Arguments Against Net Neutrality

The FCC voted on the Open Internet Order — net neutrality — about six weeks ago. But nobody ever accused the wheels of bureaucracy of turning quickly and so it is only this week that the rule has been sent off to the fine folks at the Federal Register. That means we’re finally in the home stretch handoff; the rule will become the law of the land 60 days after the Federal Register publishes it. And that means we’re finally in the window for the big wave of down-and-dirty lawsuits and legal challenges we’ve been awaiting since basically forever.

According to the Wall Street Journal, it looks like the impending tsunami of legal challenges will be all about the rule of threes: three main strategies of attack, from three groups.

Individual businesses like Comcast, AT&T, and Verizon are not expected to file suit in their own names — the trade groups are going to bat, instead. The CTIA, which represents the mobile/wireless industry; the NCTA, which primarily represents the cable industry; and US Telecom, which represents telecom groups and has already gotten a head start.

The claim US Telecom has already filed is basically just the opening act in this particular play, the forgettable local band making sure the stage stays open for the touring guys. That particular petition, along with a similar one from tiny Texas-based Alamo Broadband, was filed within a ten-day appeal window of the FCC publishing the order on their website, just to be sure that something was.

So how are the three big trade groups likely to approach the main event?

The first avenue of attack, according to the WSJ, is likely to be the “get ’em on a technicality” approach. The FCC, the groups will argue, didn’t provide proper notice in advance of passing the new rules.

But wait, you say. Wasn’t this a very public year-long back-and-forth process? And yes, yes it was. But the lawsuits will likely argue that the changes between the first proposal and the one the FCC ultimately passed were so significant that the commission should have had additional notice periods.

Secondly, the groups are likely to argue that the FCC lacks the legal authority to reclassify broadband services. That argument is probably more of an uphill battle for the putative plaintiffs than the technicality of notice periods.

FCC chairman Tom Wheeler has said more than once that the agency very, very carefully considered their jurisdiction and authority when crafting the new rule, because that gap is what allowed the 2010 standard to be thrown out in the first place. This is certainly an avenue of attack that the rule takes into account, and given how many times the Federal Communications Commission has had to reiterate its authority to regulate communications before Congress this year, it’s one that is by now well rehearsed.

If the trade groups can’t make their case on the backs of “you did it wrong” or “you’re not allowed to do this,” their last angle of approach is, according to the WSJ, likely to tackle specific provisions within the rule. That would include the ban on paid prioritization, arguments against the FCC’s ability to handle interconnection complaints, and all those other devilish details.

The eventual lawsuits have been all but guaranteed ever since the words “Title II” came out of President Obama’s mouth, and the FCC has been planning on dealing with them for just as long.

Having lost in court before, the commission has spent time crafting what Wheeler thinks is the most lawsuit-proof version of net neutrality the FCC can write. Even if he’s right, it’ll still take months — or, more likely, years — before the dust is settled one way or the other.

Telecoms Ready Fight Against Net Neutrality [Wall Street Journal]

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