Broadband Providers Seeks To Nix Net Neutrality Rules

Hoping to block the new net neutrality rules, the trade group US Telecom -- which represents AT&T, Verizon and other broadband providers -- sued the Federal Communications Commission on Monday.

The same organization filed suit several weeks ago, but that move likely was premature, given that the rules had not yet been published in the Federal Register. This latest lawsuit by USTelecom, however, comes just hours after the rules officially appeared in the Federal Register.

The FCC's net neutrality order, passed in February, reclassified broadband as a utility service and imposes some common carrier rules on broadband providers. Specifically, the rules prohibit providers from blocking or throttling service and from charging content companies higher fees for faster delivery. The rules also broadly prohibit providers from hindering Web users and content companies from connecting with each other online -- though the scope of that prohibition remains uncertain.

USTelecom says it doesn't disagree with the rules against blocking or paid fast lanes, but argues that the FCC made an “unjustifiable shift backward” by reclassifying broadband as a common-carrier service.

“USTelecom believes the FCC used the wrong approach to implementing net neutrality standards, which our industry supports and incorporates into everyday business practices,” USTelecom President Walter McCormick said in a statement.

What USTelecom doesn't say is that the FCC only reclassified broadband as a utility service because Verizon successfully sued to vacate a prior set of net neutrality rules. Those rules, passed in 2010, prohibited broadband companies from blocking, throttling or degrading service, and banned wire line -- but not wireless -- providers from engaging in unreasonable discrimination. In 2010, unlike this year, the FCC didn't reclassify broadband as a common carrier service before imposing the rules.

Verizon successfully sued to strike down those regulations on the grounds that they effectively imposed common-carrier obligations on providers of broadband, which wasn't at the time considered a utility service. Instead, broadband was then considered an “information service,” regulated under Title I of the Telecommunications Act. The appeals court said in its ruling that the FCC could only impose common carrier rules -- like rules banning discrimination -- on services that are regulated under Title II of the telecommunications law.

Net neutrality advocates responded by pressing the FCC to reclassify broadband as a utility service, arguing that the move was the only way to create neutrality rules that would stand up in court.

USTelecom says it will argue that the the FCC's decision to reclassify was arbitrary, capricious, and an abuse of discretion.” USTelecom also plans to argue that the agency didn't give companies adequate notice of its plans before voting in February.

As a practical matter it doesn't seem likely that the FCC's vote was a big surprise to any telecoms. USTelecom presumably will argue that even if its members had a fairly good idea of what the FCC was planning to do, the agency should have taken extra procedural steps before the vote.

It's not clear how long the D.C. Circuit Court of Appeals will take to decide the issue, but if history is any guide, it could take quite a while: The same court waited until January of 2014 to issue a decision about the legality of the 2010 neutrality rules.

Meanwhile, today's lawsuit isn't expected to be the only one. Other industry associations are expected to file their own challenges to the net neutrality regulation in the next several weeks.

The rules themselves are slated to go into effect on June 12.

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