First Legal Challenges To FCC's Net Neutrality Rules Filed

from the get-ready-for-more dept

Mon, Mar 23rd 2015 3:50pm — Mike Masnick

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.

259713340 Ustelecom Petition (PDF)259713340 Ustelecom Petition (Text)

259713341 Alamo Petition (PDF)259713341 Alamo Petition (Text)

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Filed Under: arbitrary and capricious, fcc, lawsuits, net neutrality
Companies: alamo broadband, ustelecom

17 Comments

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Padpaw (profile), 23 Mar 2015 @ 4:41pm

Now we get to see which judges they have been bribing, sorry donating to
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orbitalinsertion (profile), 23 Mar 2015 @ 6:04pm

That's what you get for years of arbitrary, capricious, and abusive ISP behavior. Suck it.
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Anonymous Coward, 23 Mar 2015 @ 7:07pm

It was known this would come. Verizon brought this about with their law suit over net neutrality and now everyone as the red ass over being placed under Title II, where they can't as easily get around the watchful eye of the FCC to pull the shenanigans they did with Netflix.

Sorry but I have no sympathy for these major telcoms. Title II is definitely with in the powers granted the FCC.
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That One Guy (profile), 23 Mar 2015 @ 8:26pm

Oh those poor babies
After years of 'arbitrary, capricious, and an abus(sive)' behavior, suddenly when someone tries to call them on it they throw tantrum after tantrum, screaming about how unfair it is that a government agency is trying to take some of their favorite toys away from them, and is threatening to slap them down if they continue hitting their customers with them.

Act like an adult, or get treated like a child. They've shown that they cannot act responsibly on their own, and now the government is having to step in, and they have no-one but themselves to blame for it.
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Anonymous Coward, 23 Mar 2015 @ 8:45pm

Anything
that has these fucks screaming like they are on the ropes cannot possibly be as terrible as what we had before right?

I am still on the fence over this.

I like to see the telco's with a solid black eye, fat lip, and a slipping grip over the cliff of despair but lets get serious.

The new rules only do one thing. Allow the FCC to pick and choose winners & losers. I am not so sure that this is any better because at the end of the day... we already have the FCC's history in hand. Corrupt as the bastards they claim to defend us against, never forget that revolving damn door!

I think the telco's are screaming on FCC's behalf to blind us. Those rules stink about as much as the current regime! Just exactly what are you people expecting from this?
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Anonymous Coward, 23 Mar 2015 @ 8:54pm

Re: Anything
any thoughts on what they should be doing?
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That One Guy (profile), 23 Mar 2015 @ 9:29pm

Re: Re: Anything
I've seen that asked before, and in fact I've even asked that question myself to those who claim that the FCC getting involved is overkill or a bad idea, and I don't think I've ever seen a real satisfactory answer.

Was Title II, and/or the FCC stepping in ideal? No, but I don't think I've seen anyone argue that it was. What people have argued was that it was the best option out of a bunch of bad ones, because clearly the chosen option of 'Just let the market sort things out' in place before that point wasn't working in the favor of anyone but the major companies.
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AJ, 24 Mar 2015 @ 3:44am

Re: Re: Re: Anything
"any thoughts on what they should be doing?"

Acting responsible, and keeping the customers best interest in mind when making decisions instead of just the bottom line? Lets face it; The ISP's are in it to make money. They have shown time and again that they will lie, cheat, and bend rules to squeeze out a few more dollars from their customers. THIS is the reason we need the FCC involved. Granted, it's not the best answer ever, but I don't see a line of people throwing up alternatives.
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Mason Wheeler (profile), 24 Mar 2015 @ 3:48am

Re: Anything
The new rules only do one thing. Allow the FCC to pick and choose winners & losers.

How exactly do they do that? Seems to me that all they do is allow the FCC to forbid the ISPs from picking and choosing winners & losers, which is actually something completely different. It puts the power of picking and choosing winners and losers back in the hands of the people who use those services, which is who ought to have had that power all along.
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Anonymous Coward, 24 Mar 2015 @ 5:00am

and all the law suits will be trying to get 'real net neutrality' in place because they want to ensure the customers are protected and getting the best service!! it has nothing to do with money at all!! yeah! right!
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Anonymous Coward, 24 Mar 2015 @ 6:44am

They're just trying to stall to try and see what they can sue over. That's all this is. Most will see it as a BS tactic for what it really is.
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Anonymous Coward, 24 Mar 2015 @ 7:29am

Re: Re: Re: Re: Anything
Yes, the FCC should be getting involved, but not in the way they have been.

The ISP's would not be the problem they are now, if the FCC did not make them the problem they are now.

Everyone needs to remember that government entities first CREATE the problem then CAMPAIGN against them.

If the FCC had not given them their defacto Monopolies then there would be a lot more default competition preventing things from being as bad as they are.

Why are there no ISP's advertising that "we have the biggest pipe to Netflix, Hulu, and YouTube, WATCH all the things in 4k HD!"

Because they have no incentive that is why... and the FCC is the cause of it all.

Lets face it Ladies and Gentlemen.

GOVERNMENT REGULATION IS DOING NOTHING BUT CREATING MONOPOLIES FOR THE BIGGEST DONORS!

It's been going on for years right in front of our faces... they practically don't even make an effort to hide it.
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Anonymous Coward, 24 Mar 2015 @ 7:35am

Re: Re: Anything
You act like the FCC is NOT already doing this? Check some factual human history out... its not hard. Everyone is holding their breath too!

Go read the rules... its blatant on its face, just hidden in lawyer doublespeak and "well meaning" sounding words that people tired of the crap are so willing to blindly trust.

Yes... you are a damsel in distress and the FCC is your White Knight on a Bossly stallion. Never mind that your White Knight set the dragon to guard you in the first place.

Yes, we need an FCC, but not this one!
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John Fenderson (profile), 24 Mar 2015 @ 8:01am

Re: Anything
"The new rules only do one thing. Allow the FCC to pick and choose winners & losers."

I disagree, but let's say you're right. My response to that is: better the FCC does it than our current situation where the ISPs will do it.
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Padpaw (profile), 24 Mar 2015 @ 8:07am

Re: Re: Re: Re: Anything
sorry I asked the what they should be doing question.

I meant what the FCC should be doing not the isp's when I asked that.

I was curious what his thoughts were on what they should do opposed to what they are doing
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That One Guy (profile), 24 Mar 2015 @ 12:26pm

Re: Re: Re: Re: Re: Anything
So, the FCC screwed up before and made the mess, and now that they're trying to do something about it you cry foul? How does anything ever get fixed under that logic?

'Well, employee X screwed up, and while he says he wants to try and fix the mess he made, I think it would be a better idea to keep him from doing so, just in case, and hope the mess fixes itself.'

Also, regulations as a whole are not the problem. Properly written and utilized, regulations keep companies from going from 'moderately predatory' to 'We'll do whatever we want, and we're big enough you can't do anything about it'.

Regulations on their own are not a bad thing, unless you're a company with bad or anti-consumer intentions.

Now, can regulations be bad, when they are written, either directly or indirectly by those they are supposed to be regulating? Yes. However, they can also reign in companies and force them to at least pretend to care about their customers, their safety, and things other than the company profits.

Like many things, regulations can be good, and they can be bad, it's never entirely one or the other.
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GEMont (profile), 24 Mar 2015 @ 12:28pm

The Business Model
" It's difficult to see how the suing broadband providers are going to get past that ruling."

Hmmm.... let's see. There's bribery, blackmail, coercion, character and physical assassination, lobbying, deception, manufacturing false evidence, hiring phony "Experts" for massive disinformation campaigns on public media ....

I'm sure they'll have no problem at all.

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