No Matter What Net Neutrality Rules Are Put In Place, There Will Be Legal Challenges

from the the-battle-will-be-on dept

Wed, Oct 8th 2014 3:43pm — Mike Masnick

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."

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Filed Under: fcc, legal challenges, net neutrality, open internet, section 706, title ii
Companies: verizon

11 Comments

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Anonymous Coward, 8 Oct 2014 @ 4:03pm

This where it pays off for the Big ISP's to have a paid shill In a place of power , create a huge smoke screen pretending to fix the problems, but what they(rule makers) really do Is create rules that are weak and easily picked apart by their corporate masters while being paid by us.
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Anonymous Coward, 8 Oct 2014 @ 4:09pm

It's amazing how big monopolistic businesses get to challenge the the government on matters of law (often going so far as to write the law through politician buying) when it comes to serving their industry interests yet some poor person being harassed by the government doesn't have such resources and may end up having to plea-bargain against some trumped up charges (and their defense is usually on matters of fact and not law or whether or not the law itself is applicable). The bigger pockets get much more legal representation.
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Tom Mink, 8 Oct 2014 @ 5:07pm

If avoiding lawsuits were the point instead of enacting the best, most legally defensible policy, then reclassification would still be the best bet. Since most of the heavyweight telecom interests want to the maintain subsidies and privileges that they already receive under Title II, they would have to be more careful than if they were challenging an entirely novel regulatory regime.

Verizon, Comcast, and the like sure as hell don't want to find themselves winning the full right to discriminate against content through their lines, but suddenly have to negotiate individually with jurisdictions for rights-of-way or give up massive federal subsidies.
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Anonymous Coward, 8 Oct 2014 @ 5:32pm

Re:
And they herald this "rule of law" as one of the tenets of their American Exceptionalism battle cry.
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Anonymous Coward, 8 Oct 2014 @ 6:49pm

The 'angry at Verizon' link is a interesting read. I enjoyed the analogy of Verizon acting like a dog chasing down a bus, then not knowing what do with the bus once they caught it.

It's good to see Nancy Pelosi is sending letters to Tom Wheeler, urging him to properly classify ISPs as Title II telecommunication service providers.

Maybe millions of people and businesses across the globe won't get stuck in the slow lane after all.
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Ben, 8 Oct 2014 @ 8:42pm

10 years is to long for one person to be a Congressional Representative.
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Stan (profile), 9 Oct 2014 @ 2:30am

"... any rules are going to lead to lawsuits."
It reminds me a bit of the final scene in "Casablanca". Although instead of "Round up the usual suspects!" it's "Round up the usual lawyers!"
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Anonymous Coward, 9 Oct 2014 @ 4:18am

i'll bet the judge who started all this by removing net neutrality is really pleased with himself! had it not been for his ridiculous thinking, none of this would have happened!
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fgoodwin (profile), 9 Oct 2014 @ 9:03am

Re: Rule of Law
So how would you change things?
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Anonymous Coward, 9 Oct 2014 @ 1:28pm

Re: Re: Rule of Law
The laws should be democratically passed, without secretive back door dealings that the public doesn't get invited to, for starters. Stricter anti-revolving door favor laws.
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Zonker, 9 Oct 2014 @ 2:15pm

Re:
I believe that the ISP/Telecoms should have to either accept Title II classification or pay back all subsidies ever received under it plus interest. You don't qualify for subsidies from regulations you're not subject to.
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