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Telecom companies are suing to stop network neutrality rules

FCC chairman Tom Wheeler
FCC chairman Tom Wheeler
David Ramos/Getty Images
  1. The first two lawsuits have been filed against the network neutrality rules the Federal Communications Commission approved last month.
  2. The lawsuits, filed on Monday, charge that the new FCC rules violate the Constitution, federal telecommunications law, and the procedural requirements for drafting regulations.
  3. One lawsuit was filed by Alamo Broadband, a small internet service provider. The other comes from the US Telecom Association, whose members include large telephone companies such as AT&T and Verizon.

Net neutrality opponents are taking a shotgun approach

Plaintiffs aren't required to spell out their arguments in much detail at this phase of litigation, so each lawsuit is just three pages long. But the documents still provide a hint of the kinds of arguments opponents will raise. It looks like the telecom companies will raise every major legal argument that has been raised against the FCC proposal in recent months:

  • US Telecom says the regulations are "arbitrary, capricious, and an abuse of discretion" under the Administrative Procedure Act. This means the FCC didn't provide an adequate factual basis to support its decision to subject broadband networks to strict utility-style regulations.
  • The lawsuit says the rules are unconstitutional. This likely refers to arguments that the regulations violate the First Amendment — by depriving ISPs of the right to "edit" the content flowing though their networks — and/or the Fifth Amendment, based on the idea that network neutrality regulations amount to an unconstitutional taking of ISPs' property.
  • US Telecom claims the regulations violate the Communications Act, the legal framework that governs telecom regulations. The ISPs will likely claim that broadband networks do not meet the criteria for regulation under Title II, the part of the law designed for old-fashioned public utility networks.
  • Finally, the lawsuit says the FCC did not comply with rules requiring the agency to give the public notice of proposed regulations and an opportunity to comment on them. While the FCC did provide initial notice back in May, critics say the differences between that original proposal and the final rules the FCC approved in February were so large that the FCC needed to release the revised rules and solicit further comments before proceeding to the final vote.

Supporters of network neutrality dismissed the lawsuit as groundless. "The cable and telecom lobby have to deal with the fact that Title II is the right law for services like broadband Internet access," said Matt Wood of Free Press in an email statement. He called Title II of the Communications Act a "rock-solid basis for the Open Internet rules adopted last month."

Monday's filing is the first step in a long legal process. After Verizon sued to stop the last round of network neutrality regulations in 2011, it took more than two years for the issue to be settled by a federal appeals court. So we should expect litigation over this issue to hang over the FCC for the remainder of the Obama administration. But the FCC will have the authority to enforce the rules unless and until the courts order it to stop.