Getty Images | Yuichiro Chino
As expected, broadband industry lobby groups have sued the Federal Communications Commission in an attempt to nullify net neutrality rules that prohibit blocking, throttling, and paid prioritization.
Lobby groups representing cable, telecom, and mobile Internet service providers sued the FCC in several US appeals courts last week. Industry groups also filed a petition with the FCC on Friday asking for a stay of the rules, claiming the regulations shouldn’t take effect while litigation is pending because the industry is likely to prevail in court.
The FCC is highly likely to reject the petition for a stay, but the groups can then ask appeals court judges to impose an injunction that would prevent enforcement. The industry lost a similar case during the Obama era, but is hoping to win this time because of the Supreme Court’s evolving approach on whether federal agencies can decide “major questions” without explicit instructions from Congress.
The petition for a stay was filed by groups including NCTA-The Internet & Television Association, which represents large cable providers such as Comcast and Charter; and USTelecom, which represents telcos including AT&T, Verizon, and CenturyLink/Lumen.
“By reclassifying broadband under Title II of the Communications Act of 1934, the Commission asserts the power to set prices, dictate terms and conditions, require or prohibit investment or divestment, and more. It should be ‘indisputable’ that the major-questions doctrine applies to that seismic claim of authority,” the petition for a stay said.
Broadband classified as telecommunications
The FCC’s net neutrality order reclassified broadband as telecommunications, which makes Internet service subject to common-carrier regulations under Title II. The order reverses the Trump-era FCC’s classification of broadband as an information service and is scheduled to take effect on July 22. The FCC approved it in a 3-2 vote on April 25.
Despite the industry’s claim that classification is a major question that can only be decided by Congress, a federal appeals court ruled in previous cases that the FCC has authority to classify broadband as either a telecommunications or information service.
The lobby groups claim that without a stay preventing enforcement, their members “will suffer irreparable harm, as they did in the wake of the 2015 Order. In particular, petitioners’ members will be forced to delay or forego valuable new services, incur prohibitive compliance costs, and pay more to obtain capital.”
Lawsuits against the FCC were filed in the US Court of Appeals for the District of Columbia Circuit by CTIA-The Wireless Association, which represents mobile providers; America’s Communications Association (ACA), which represents small and medium-sized cable providers; and the Wireless Internet Service Providers Association (WISPA), which represents fixed wireless providers.
The FCC was sued in other federal circuit appeals courts by the Texas Cable Association, the Ohio Telecom Association, the Ohio Cable Telecommunications Association, the Missouri Internet & Television Association, and Florida Internet & Television Association.
The cases will be consolidated into one court. The DC Circuit appeals court handled challenges to the Obama-era and Trump-era net neutrality decisions, ruling in favor of the FCC both times. Despite the Trump-era repeal, many ISPs still have to follow net neutrality rules because of regulations imposed by California and other states.
FCC: Authority “clear as day”
FCC Commissioner Geoffrey Starks said before the April 25 vote that the FCC’s authority to regulate broadband as a telecommunications service “is clear as day.”
To find otherwise, a court “would need to conclude that ‘this is a major questions case.’ Yet major questions review is reserved for only ‘extraordinary cases’—and this one doesn’t come close,” Starks said. “There’s no ‘unheralded power’ that we’re purporting to discover in the annals of an old, dusty statute—we’ve been classifying communications services one way or the other for decades, and the 1996 [Telecommunications] Act expressly codified our ability to continue that practice.”
If the industry loses at the appeals-court level again, lobby groups would seek review at the Supreme Court. Their hopes depend partly on Justice Brett Kavanaugh, who argued in a 2017 dissent as a circuit court judge that the “net neutrality rule is unlawful and must be vacated” because “Congress did not clearly authorize the FCC to issue the net neutrality rule.”
The CTIA lawsuit against the FCC said, “Given the undisputed fact that broadband Internet is an essential engine of the nation’s economic, social, and political life, the major-questions doctrine requires the FCC to identify clear statutory authority to subject broadband Internet access service to common-carrier regulation. The Order does not and cannot point to such authority. And to the extent there is any statutory ambiguity, the Order’s Title II approach far exceeds the bounds of reasonable interpretation and infringes rights protected by the Constitution.”