Net Neutrality Battle Moves To Courts

The battle over net neutrality moved to the courts this week with the filing of two separate actions challenging the new rules.

One case comes from the trade group US Telecom Association, which counts Verizon and AT&T among its members. The organization, which filed suit in the D.C. Circuit Court of Appeals, calls the FCC's net neutrality order “arbitrary, capricious, and an abuse of discretion.”

US Telecom adds in its petition for review that the FCC didn't follow all of the required procedures before voting to reclassify broadband as a utility service.

“The focus of our legal appeal will be on the FCC's decision to reclassify broadband Internet access as a public utility service after a decade of amazing innovation and investment under the FCC's previous light-touch approach,” US Telecom Senior Vice President Jon Banks said in a statement.

The other challenge comes from Alamo Broadband, a small wireless Internet service provider south of San Antonio, Texas. Alamo brought its suit -- which also accuses the FCC of acting in an arbitrary and capricious manner -- in the 5th Circuit Court of Appeals.



The company, which serves around 700 subscribers, said last month that it supported a “free and open Internet,” but opposed reclassifying broadband as a utility.

“Broadband providers like Alamo Broadband do not engage in blocking or similar practices that restrict Internet access,” Alamo wrote to the FCC on Feb. 17 -- one week before the agency's vote to impose net neutrality rules. But the ISP added that reclassifying high-speed Internet access as a common carrier service could “stifle a broadband provider’s ability to continue deploying the next generation of high-speed broadband networks.”

While most observers predicted that the rules would face a court challenge, US Telecom and Alamo might have jumped the gun with these lawsuits, given that the FCC hasn't yet finalized the rules.

The agency voted on Feb. 26 to reclassify broadband service as a public utility and subjects providers to some of the same common-carrier rules that telephone companies must follow. Specifically, the FCC prohibited carriers from blocking or throttling lawful content, and from charging companies higher fees for prioritized delivery. The regulations also contain a “general conduct” provision that prohibits carriers from unreasonably hindering consumers and content providers from reaching each other. The FCC intends to take a “case-by-case approach” to evaluating whether particular practices -- like data caps -- violate that provision.

Two weeks ago, the FCC posted the entire text of the order, but hasn't yet published the rules in the Federal Register. The order won't take effect until 60 days after publication in the Federal Register.

In 2010, when the FCC enacted an earlier -- and weaker -- version of net neutrality rules, Verizon almost immediately filed suit. The D.C. Circuit Court of Appeals threw out that initial case, telling Verizon it couldn't sue until at least 60 days after the rules were published. Verizon ultimately prevailed last year, when the court vacated the rules; that decision set the stage for the FCC to reclassify broadband as a common carrier service.

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