No Matter What Net Neutrality Rules Are Put In Place, There Will Be Legal Challenges
from the the-battle-will-be-on dept
Last month, Rep. Anna Eshoo warned the FCC to be careful in coming up with its new net neutrality/open internet rules, and to make sure that its new rules didn’t just end up back in court:
Rep. Anna Eshoo (Calif.), the top Democrat on the House Energy and Commerce subcommittee on Technology, seemed to warn the Federal Communications Commission (FCC) on Thursday against making a move that could land it back in a courtroom for years.
?We?ve been caught on the ropes for a long time,? she said during an event at the Hudson Institute.
?I think a lot of time has been wasted. At this stage of the game … ten years or more in the 21st century is too long on one thing,? she added.
And while Eshoo has been supportive of stronger net neutrality rules by the FCC, the big broadband players who are against such rules have regularly used this same argument against net neutrality rules, arguing that if the FCC decides to reclassify under Title II, that it will mean “years in court” as the telcos fight over this. But that’s ridiculous because of one simple fact:
Whatever rules are put in place, it will lead to a years-long legal fight.
That was a point that we made in our public comments on the proposed rules, and it’s about the only thing a bunch of lawyers agreed on at an FCC roundtable this week. Everyone disagreed on what the best solution was, but everyone agreed that any solution will end up in court.
The big broadband guys have been pretending that only reclassification will end up in court, with Comcast and AT&T claiming (somewhat disingenuously) that they’d be fine with proposed rules under Section 706. However, Verizon was a bit less enthusiastic, arguing that no new rules are needed at all, and implying, strongly, that it might challenge basically any new rule. And this would not be unprecedented. After all, the 2010 open internet rules were basically written in part by Verizon, and then Verizon challenged them anyway (and won). This is partly why stories recently appeared about how ISPs are now angry at Verizon because challenging those (very, very weak) rules and winning may lead to much stricter rules.
But the simple fact remains that any rules are going to lead to lawsuits. And, given that, any claim that the FCC needs to put in place one particular solution to avoid lawsuits is misleading. No matter what rules are put in place, there will be legal uncertainty for the next few years. If anything, that suggests that the FCC shouldn’t consider “which rules will avoid being dragged to court,” but rather it should take that question off the table. Instead, the FCC should focus on “what’s the right thing to do.”