Seven Lawsuits Now Pending Against FCC Over 'Net Neutrality' Rule

By Rudy Takala | April 24, 2015 | 1:40pm EDT


ype="node" title="FCC logo


( -- The number of lawsuits filed by industry groups against the Federal Communications Commission (FCC) over its new "net neutrality" rules continued to grow, with a seventh organization joining the pack last Friday.

The list of those suing the FCC now includes three Internet Service Providers (ISPs) and four trade associations united in opposition to the FCC's decision that reclassifies ISPs as Title II utilities.

The controversial rules, which passed the FCC on a 3-2 party-line vote in February, give the FCC the authority to impose the principles of “net neutrality”. Those principles include the idea that ISPs should not be able to block Websites or throttle traffic on the Internet.

Although all of the groups filing suit expressed support for the principles of net neutrality, they argued that the FCC had exceeded its authority in reclassifying the Internet as a utility.

Net neutrality could have been imposed by using a different type of regulatory authority, but the FCC voted to use the much more invasive power afforded to it by the Communications Act of 1934.

FCC Chairman Tom Wheeler originally proposed using the “light touch” approach, which faced less intense opposition, but changed his approach after President Obama suggested using “the strongest possible rules.”

Six of the seven suits were filed in the D.C. Circuit Court of Appeals, while one was filed in federal court in New Orleans.

Publication of the rules in The Federal Register on April 20 triggered the 60-day waiting period before they take effect, increasing the push for judicial action to stop that from happening.

ISPs that filed lawsuits against the FCC include CenturyLink, AT&T, and Alamo Broadband.

CenturyLink, the third-largest telecom company in the United States, was the most recent ISP to file suit on April 17. The company maintains that it already complies with the tenets of net neutrality, and that the FCC’s reclassification of it as a regulated public utility is unduly burdensome.

“CenturyLink invests hundreds of millions of dollars a year to build, maintain and update an open Internet network and does not block or degrade lawful content,” the company said in a statement.

“However, the FCC has chosen to subjugate the Internet to government-controlled public utility regulations from the 1930s. These regulations not only have no place in the 21st century economy, but will chill innovation and investment.” (View the court filing here.)

Though AT&T declined to comment on its pending lawsuit, the company has been a vocal opponent of the FCC’s net neutrality order.

Writing in a blog post the day the FCC passed the new net neutrality rules, Jim Cicconi, AT&T’s Senior Executive Vice President of External and Legislative Affairs, said that the company supported net neutrality, but that the FCC acted inappropriately by injecting partisanship into the debate.

Federal Communications Commission Chairman Tom Wheeler, who voted for the FCC's "net neutrality" rules. (AP photo)

“We have never argued there should be no regulation in this area, simply that there should be smart regulation,” Cicconi wrote. “Partisan decisions taken on 3-2 votes can be undone on similarly partisan 3-2 votes only two years hence…

“This may suit partisans who lust for issues of political division, but it isn’t healthy for the Internet ecosystem, for the economy, or for our political system,” he concluded. (View the court filing here, courtesy of The Washington Post).

The Texas-based Alamo Broadband is the only organization to date not filing its lawsuit against the FCC in Washington, D.C., choosing to file in New Orleans on March 23 instead.

In its court filing, Alamo contended that the FCC’s net neutrality ruling is “1) in excess of the Commission’s authority; 2) arbitrary, capricious, and an abuse of discretion…; 3) contrary to constitutional right; and 4) otherwise contrary to law.”

Notably, Alamo provides an explicit “Open Internet Compliance Statement” on its Website in which it asserts that it is already in compliance with the tenets of net neutrality. (View Alamo's lawsuit here, courtesy of The Washington Post).

Trade associations that filed suit against the FCC include the American Cable Association (ACA); the Cellular Telephone Industries Association (CTIA); the United States Telecom Association (USTelecom); and the National Cable and Telecommunications Association (NCTA).

The American Cable Association (ACA) is a trade association representing 850 small-to-mid-sized cable companies that provide broadband service to around seven million cable subscribers.

Notably, 17 large broadband companies provide service to 93 percent of retail subscribers in the U.S., while 3,000 smaller companies serve the remaining seven percent. The companies comprising the ACA represent those hardest hit by the cost of new regulatory burdens.

The group announced it was filing suit on April 14, saying that while it supports the precepts behind net neutrality, it objected to the regulatory burdens imposed on smaller providers as a consequence of the regulations.

“The FCC ostensibly says it addresses the concerns of small Internet service providers. But, in reality, it has given them no material relief,” the ACA said in a statement.

Republican FCC Commissioner Michael O’Rielly predicted that regulatory compliance with the new rules will impose a greater burden on smaller providers. “In most cases, smaller ISPs employ a handful of people, and those employees are typically focused on deployment and customer service, not regulatory compliance,” O’Rielly said in February.

Cellular Telephone Industries Association, the trade association that represents AT&T, Verizon, Sprint, T-Mobile and more than 100 other telecommunications companies, similarly expressed support for net neutrality while denouncing the FCC decision for imposing onerous regulations and bypassing Congress.

In a statement by board chairman Ron Smith, CTIA said, “The FCC usurped the role of Congress and departed from a bipartisan mobile-specific framework to create a new intrusive regulatory framework. CTIA had no choice but to seek judicial review to preserve the regulatory approach that has been instrumental in helping the U.S. become the global leader.” (View the court filing here, courtesy of The Washington Post.)

Along with Alamo, The United States Telecom Association initially filed suit in March when the net neutrality rules were first published on the FCC’s Website, calling it a “precautionary move.” The trade association filed for the second time on April 13.

USTelecom President Walter McCormick reiterated his colleagues’ support for net neutrality while condemning the FCC’s regulatory imposition.

“The commission’s overreach is not only legally unsustainable, it is unwise… and it is unnecessary given the fact that broadband service providers are operating in conformance with the open Internet standard,” McCormick said. (View the court filing here.)

The National Cable and Telecommunications Association (NCTA), which includes cable giants Comcast, Time Warner Cable and Cablevision, has hired former U.S. Solicitor General Theodore Olson and his assistant, Miguel Estrada, to lead their charge against the FCC.

Olson said the FCC did not have the legal standing to enforce its net neutrality rules.

“The FCC, in effect, has impermissibly rewritten the Communications Act,” Olson said, referencing the 1934 legislation the FCC used to reclassify the Internet. “Congress clearly intended for the Internet to evolve unencumbered by complex, inefficient government regulations.” (View the court filing here.)

However, FCC spokeswoman Kim Hart said that most of the commissioners believe the lawsuits would not be successful.

“We are confident the FCC’s new Open Internet rules will be upheld by the courts, ensuring enforceable protections for consumers and innovators online,” she said in a statement.

Related: FCC Chairman Concedes Future Internet Tax Is Possible

MRC Store