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.

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

AT&T Is Fine With Title II -- When It Protects AT&T From Anti-Competitive Behavior

from the cake-and-eat-it-too dept

For months now, AT&T has been telling anybody who'll listen that Title II-based net neutrality rules are "from a bygone era," will "diminish industry investment and competition," and are a draconian, devastating example of regulatory overreach. In protest over the FCC's new neutrality rules, the company even went so far as to "suspend" its largely phony 100-city fiber-to-the-home investments to "prove" Title II was an investment killer (though it ultimately had to walk back the bluff after the FCC decided to fact check the company's math).

While publicly AT&T tries to argue that Title II is a menace of the highest order, privately, AT&T consistently defers to authority of Title II -- when it's in AT&T's best interests to do so. The company recently floated above, around and over Title II and common carrier definitions to skirt an FTC investigation into its throttling practices. You'll note that when AT&T benefits from some of the protections Title II can offer, suddenly, magically gone is all of the rhetoric about Title II being bad simply because it's based on the framework of an older law.

The latest example of this involves a billing dispute between AT&T and several smaller telcos. Basically -- AT&T recently complained that Great Lakes Comnet and Westphalia Telephone Company over-billed the telco to the tune of $12 million, and were demanding AT&T pay another $4.3 million in errant charges for interstate connections. AT&T complained to the FCC, stating that Sections 201(b), 203 and 208 of the Communications Act (**cough** Title II) prohibit such charges when they are not "just and reasonable." The FCC agreed, and sided in AT&T's favor:

"We agree with AT&T," the FCC wrote. "We find that GLC violated the Commission’s Rules governing competitive local exchange carrier tariffs for interstate access services, and that the tariff therefore is unlawful. We also grant AT&T’s claim in Count III that WTC unlawfully billed for services prior to May 2013 that GLC provided."

Just in case it's not clear, AT&T's using Title II to defend itself from over-billing, but has thrown a series of increasingly hostile hissy fits at the very idea the same standards could be applied to defend consumers from AT&T. AT&T's of course not alone in simultaneously demonizing a "regulatory framework developed for Ma Bell in the 1930s" while benefiting from it. Verizon has enjoyed massive tax breaks for years when it comes to classifying portions of its FiOS network under Title II. The wireless industry also witnessed a decade of explosive growth and profit while wireless voice remained classified under Title II.

That's because it's not really Title II the telcos are worried about. All they're worried about are the billions they stand to lose should a regulator be able to defend consumers from anti-competitive behavior. As such, it's never really been specifically about Title II -- it has simply been about government daring -- for probably the first time in fifteen years -- to stand up to broadband ISPs when it comes to seriously protecting consumers.

Filed Under: competition, consumer protection, fcc, overbilling, overcharging, title ii
Companies: at&t, great lakes comnet, westphalia telephone company