Countdown Clock For Real Net Neutrality Lawsuits Starts Monday

The Net Neutrality rules narrowly approved by the FCC in February and made public in March will finally become part of the Federal Register on Monday, kicking off a 60-day countdown clock for everyone and their Aunt Peg to file a lawsuit to try to block, neuter, or gut the new regulations.

28 U.S.C. § 2344 sets up a 60-day window for “Any party aggrieved” by a finalized federal order to “file a petition to review the order” with a federal appeals court.

With the neutrality rules officially becoming part of the Federal Register on April 13, that means telecom and Internet companies seeking to block them from being enforced have until mid-June to get their petitions in.

While it was a lawsuit brought by Verizon that ultimately gutted the 2010 neutrality rules, it seems unlikely that individual companies will put themselves out there as the ones looking to kill the order.

Instead, as we recently wrote, the more likely candidates for going to war with the FCC are industry trade groups like the wireless industry’s CTIA and the National Cable & Telecommunications Association (NCTA), which primarily represents the cable industry.

It’s expected that the plaintiffs in these cases will contend that the FCC failed to give the industry proper notice in advance of passing the new rules. They will likely argue that the initial draft rules proposed by FCC Chair Tom Wheeler — which included some allowance for controversial Internet “fast lanes,” where ISPs can charge content providers for improved access to end-users — are so different than what was ultimately voted on by the Commission that more time was needed.

There will also be the argument that the FCC lacks statutory authority to reclassify broadband service as telecommunications infrastructure.

When the 2010 rules were gutted, it was because Verizon successfully argued that the FCC could not impose strict neutrality regulations because broadband was not classified the same way that more highly regulated telephone services are. And so the FCC, in creating the new rules, reclassified broadband to recognize its vital importance to the public.

The FCC is within its rights to reclassify broadband; the plaintiffs will have to prove that the reclassification wasn’t justified or that the Commission erred in the process of reclassification.

A pair of early lawsuits have already been filed by a telecom industry trade group and a Texas-based broadband company no one outside of San Antonio has ever heard of. Those petitions were filed within a 10-day window detailed in 28 U.S.C. § 2112(a) just in case the “declaratory ruling” sections of the rule were actually considered finalized on March 12 when the FCC published the full text of the order on its site.

The two lawsuits have since been consolidated into one case that is now before a federal appeals court in D.C., though some legal experts say it’s likely the complaints will be dismissed for being filed too early.

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