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Net Neutrality: It's Time for the Lawsuits!

By Casey C. Sullivan, Esq. on March 25, 2015 12:48 PM

Less than a month after the FCC commissioners voted to regulate Internet service providers as "common carriers" under the Communications Act, the telecoms have filed suit. Well, one industry trade group, USTelecom, representing some of the nation's largest Internet providers, has sued, as has one small Texas ISP, Alamo Broadband.

The suits, brought in the D.C. and Fifth Circuits, come much sooner than expected, as the FCC has just begun to process of regulating ISPs. Has this pair jumped the gun or are they just in time to shoot down the FCC's regulations in their infancy?

What's the Big Deal?

Regulating ISPs under Title II of the Communications Act means that the Internet will be treated as a common carrier. Under the FCC's "Open Internet" rules, ISPs would be prohibited from blocking or throttling traffic, nor will they be able to give priority to paid traffic.

This means that ISPs, as common carriers, won't be able to discriminate in the traffic they carry -- Netflix won't be charged for the gargantuan amount of internet bandwidth it uses, nor will your old Geocities account be throttled because it can't afford to buy space in the Internet fast lane. Many Telecoms want to charge for the traffic that passes through their system; the FCC wants to prevent that.

Too Soon to Sue?

Fans of administrative law, all ten of them, may be scratching their heads at the timing of the suit. Under the Administrative Procedure Act, the most common way to scuttle agency rule making, there are well established procedures that must be exhausted before plaintiffs may bring suit. Since the Order issued in the FCC's notice and comment rulemaking constitutes a declaratory ruling which was final as soon as published and therefore ready for challenge in court.

In its brief petition for review, Alamo claims the Order is in excess of the Commission's authority, arbitrary and capricious under the APA, and contrary to the constitution and law. USTelecom echoes these complaints and also alleges that the Order was made in violation of notice and comment procedures.

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