The Long-Awaited Net Neutrality Lawsuits Are Finally Here


As it was foretold, so it has come to pass: with the Open Internet Rule finally entering the Federal Register yesterday, lawsuit season is now officially open. And as promised, threatened, and endlessly discussed, the trade groups representing all of the big broadband providers have vaulted into action right on cue, asking the courts to stop this piece of consumer protection before it can happen.

The big ISPs all began their saber-rattling back in November, when — thanks in part to a very public statement from the White House — Title II classification suddenly began to look like it could really happen. It did indeed happen at the end of February, and officially became the law of the land yesterday.

When the Federal Register printed the rule (which formally goes into effect on June 12), that kicked off a 10-day window in which opposing parties can try to stop it. And industry trade groups — the NCTA, the CTIA, USTelecom, and the American Cable Association — are very opposed indeed. USTelecom (which filed earlier just in case) got their petition into court yesterday, and was joined by the other three groups today.

The petitions for review, as the filings are formally known, are comparatively short and sweet documents. They’re only a few of pages long, and basically they kick off the process.

As predicted, the trade groups are attacking on basically every possible front at once: procedure, authority, and substance. That is, they claim that the FCC did it wrong; that even if the FCC didn’t do it wrong, that they didn’t have the authority to do it; and that even if they did have the authority to do it and didn’t do it wrong, that the details are all rubbish and need to be thrown out.

USTelecom (PDF), the CTIA (PDF), and the NCTA (PDF) all ask exactly the same thing, in exactly the same words:

[The organization seeks] review of the Order on the grounds that it is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act …; violates federal law, including, but not limited to, the Constitution, the Communications Act of 1934, as amended, and FCC regulations promulgated thereunder; conflicts with the notice-and-comment rule making requirements [of the US code]; and is otherwise contrary to law.

[USTelecom/CTIA/NCTA] respectfully requests that this Court hold unlawful, vacate, enjoin, and set aside the Order, and that it provide such additional relief as may be appropriate.

The American Cable Association’s request (PDF) is the Cliffs Notes version, saying: “ACA seeks relief from the FCC’s Open Internet Order on the grounds that it is arbitrary, capricious, in excess of the FCC’s statutory authority, contrary to the Constitution, and otherwise not in accordance with law.”

Once the courts do their thing and bundle all of these petitions together, the four organizations will begin the much lengthier and more detailed process of trying to prove that the FCC is behaving in an arbitrary, capricious, and unconstitutional manner. That process is likely to take years.

FCC chairman Tom Wheeler, however, has long anticipated the lawsuits and basically dared the industry to bring their challenges. Since the rule’s passage in February, Wheeler has repeatedly stated that the final version was very carefully crafted, because the FCC expected court challenges and wanted net neutrality to withstand them.

Courts are not the only challenge to the open internet protections; Congress is also doing its thing, threatening the FCC’s funding and pitching purely symbolic resolutions to block the rule.