First Legal Challenges To FCC's Net Neutrality Rules Filed
from the get-ready-for-more dept
As we noted a week and a half ago when the FCC released its full net neutrality rules, it seemed like the legal challenges wouldn’t start for a little while — because the rules had to formally be published in the Federal Register, which would then set off the countdown clock for filing a lawsuit against the rules. However, some believe that parts of the new rules fall under a different legal regime, and thus there is a 10 day limit from the date the rules were released to file an appeal. And thus, we have USTelecom, a trade association of broadband providers and Alamo Broadband, a small Texas-based ISP, who have both filed legal challenges over the FCC’s rules. Specifically, they’re both asking appeals courts to “review” the rules. Alamo is asking the Fifth Circuit court of appeals, while USTelecom is focusing on the DC Circuit (which is where the last challenge to FCC rules happened). The reasoning in both is fairly similar. Here’s USTelecom’s argument:
US Telecom 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, 5 U.S.C. § 701 et seq.; 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 rulemaking requirements of 5 U.S.C. § 553; and is otherwise contrary to law.
Meanwhile, the focus of Alamo’s argument is:
Alamo seeks relief on the grounds that the Order: (1) is in excess of the Commission’s authority; (2) is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; (3) is contrary to constitutional right; and (4) is otherwise contrary to law.
You’ll notice that they’re both fairly similar. The focus, as in many lawsuits against FCC actions, is on that “arbitrary, capricious and an abuse of discretion.” This is what haters of Title II have been arguing all along, but that seems like it may be a difficult argument to win in court — especially given what courts have said previously, including in the Brand X ruling (which basically kicked off the process for broadband players classified under Title I instead of Title II) where they more or less said that the FCC should be given deference in these kinds of decisions. It’s difficult to see how the suing broadband providers are going to get past that ruling.