A little more than a week after the FCC released the full text of its recently passed Open Internet (aka net neutrality) rule, the telecom industry has done exactly what you’d expect, by filing lawsuits to block the Commission from enforcing the order.
Unlike the Verizon-led lawsuit that ultimately gutted the 2010 neutrality rule, neither of the two lawsuits filed today in federal courts in Washington, D.C., and New Orleans, have household brand names as plaintiffs — unless you’re a big follower of telecom trade groups or happen to live in the area of Texas immediately southeast of San Antonio.
The first lawsuit [PDF] — technically a petition for review — was filed by the United States Telecom Association (USTelecom), a D.C.-based trade organization which includes executives from AT&T, Verizon, CenturyLink, and Frontier on its board of directors.
It labels the order “arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act,” the federal law guiding the creation of new regulations.
The petition itself does not provide specific details on exactly how the neutrality rules allegedly violate “the Constitution, the Communications Act of 1934, as amended, and FCC regulations promulgated thereunder,” but explains the petition was filed now in order to get in under the wire before the 10-day appeal window closed (more on that below).
USTelecom is asking the court to review the order, determine it unlawful, enjoin the FCC from enforcing it, and set it aside.
“We do not believe the Federal Communications Commission’s move to utility-style regulation invoking Title II authority is legally sustainable,” said USTelecom President Walter McCormick said in a statement that provides no actual information. “Therefore, we are filing a petition to protect our procedural rights in challenging the recently adopted open Internet order.”
The second petition [PDF] was filed by Texas-based Alamo Broadband Inc., a company that most U.S. consumers have likely never heard of.
Like the USTelecom suit, it declares that the neutrality rules are arbitrary and capricious. Unlike that first petition, the Alamo filing puts a more individual face on the impact of the neutrality order, explaining that the FCC overstepped its authority and that Alamo is “aggrieved by the order.”
So why did these two parties file suits and not AT&T, Verizon, or even the more prominent industry trade groups like the National Cable & Telecommunications Association and CTIA-The Wireless Association?
It’s likely a matter of timing. The clock doesn’t generally start ticking on that 10-day appeal window until after an order is made final. These petitions contend that the “declaratory ruling” sections of the rule were finalized on March 12 when the FCC published the full text of the order on its site.
However, others argue that the rule isn’t actually made final until after it’s published in the Federal Register. The neutrality rule has yet to be published so, if you accept this latter point of view, the 10-day clock has not started.
“We believe that the petitions for review filed today are premature and subject to dismissal,” reads a statement from an FCC rep.
If the FCC does successfully have these petitions dismissed because of timing issues, then the bigger trade organizations will still have time to file their inevitable lawsuits.
Of course, if Verizon hadn’t sued to block the 2010 neutrality rules, the FCC wouldn’t have needed to reclassify broadband to increase its regulatory authority in the first place.
by Chris Morran via Consumerist