Net Neutrality

ISPs Challenge FCC Net Neutrality Rules as "Arbitrary, Capricious, and An Abuse of Discretion"


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The Federal Communications Commission's new Internet rules aren't even a month old, and they're already being challenged in court—multiple courts, to be exact. 

A consortium of major Internet service providers, through the USTelecom Association, which includes AT&T and Verizon, formally submitted a legal complaint in the District of Columbia yesterday. The complaint states that the FCC's recent order, which reclassifies broadband Internet service as a Title II telecommunications service, making it akin to a utility, is "arbitrary, capricious, and an abuse of discretion…" and that it "violates federal law, including, but not limited to, the Consitution, the Communications Act of 1934, as amended, and FCC regulations promulgated thereunder."

Another suit was filed by a small Texas ISP in a New Orleans court. Both suits were first noted by The Washington Post.

The legal challenges were all but inevitable as soon as the FCC decided to pursue reclassification, which potentially subjects ISPs to much stricter regulatory oversight. The FCC has been nosing around the possibility of reclassification for years, and critics have been warning the entire time that if the agency went that route, a drawn out legal battle would be unavoidable. The FCC made its choice, and now a multi-year, multi-front courtroom saga awaits.

And the thing is, the FCC might lose—again. The agency's last two attempts to institute net neutrality also wound up in court, and both were eventually thrown out. It's not all clear that the agency's rules have more solid legal grounding this time.

Indeed, as Berin Szoka of TechFreedom points out, the FCC's refusal to formally issue notice of new rules late last year when Chairman Wheeler changed directions and began considering reclassification is a vulnerability. Because of that decision, the rules that the FCC voted on last month were never really debated publicly; the agency had spent a year taking public comments on a different proposal, and then altered its approach at the last minute. That alone makes it legally dicey.

Anyway, this is likely just the first salvo in the Great Telecom Legal War. According to Ars Technica, more lawsuits are expected from trade groups for cable and wireless service companies. This is an all hands on deck fight for the telecom industry, with the majority of the major players taking major steps to fight the FCC's rules.

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  1. The process of promulgating the rulemaking is almost certainly reversible, and I suspect the FCC doesn’t actually have the authority to issue these rules without more direct legislative authority, even today, when agencies are legislating all of the place.

    1. I saw a commenter in an engadget article say that “These are regulations, not laws! They are allowed to make regulations!” and I got a bleed in my brain.

      1. So if regulations aren’t laws, they can be ignored, right?

          1. The day after national puppy day and you’re gonna trigger me with that?

            The Swiss have holes in their hearts.

  2. Good luck, ISPs. It is nearly impossible for a plaintiff to win on the “arbitrary and capricious” standard of review.

    1. It is difficult when the agency doesn’t go out of its way to demonstrate its improper behavior. Here, I think it’s a fairly easy win on multiple grounds. None of this even passes the smell test.

    2. The lack of comment period is going to get this stayed, I would bet $5.

          1. Transmit the moneys to me via Proteus.

            1. Speak to Switzy, I’ve appointed him to handle my trillions of Zimbabwe dollars.

  3. ISPs Challenge FCC Net Neutrality Rules as “Arbitrary, Capricious, and An Abuse of Discretion

    And they don’t close the quotation marks because they are so much more as well!

  4. “Release the hounds lawyers.”

  5. Surely they can at least find a judge that’ll issue a stay, right?

  6. The complaint states that the FCC’s recent order… is “arbitrary, capricious, and an abuse of discretion?”

    It’s a little late to start repealing FCC regulations on that grounds, isn’t it?

  7. The complaint states that the FCC’s recent order, which reclassifies broadband Internet service as a Title II telecommunications service, making it akin to a utility, is “arbitrary, capricious

    Your fly’s open.

    1. +1 Kramerica Industries

  8. For a week every time I opened Firefox I saw that “Victory! The FCC has saved the Internet!” message. I’m wondering what the Mozilla people will put on there if the courts toss out the FCC decision.

    1. Did Waterfox or Pale Moon have official positions on this or were they smart enough to keep their collective mouths shut?

      1. Collectives Mouth Shut


    2. I love how the EFF immediately issued a “WAIT JUST A SECOND, FCC!!!!” letter upon the announcement happening.

      They still have work to redeem themselves and get my money this year.

  9. IANAL, just a lowly software engineer with pretensions, but if I were the lawyers for Verizon, etc. I would make a first amendment case out of this. Scenario:

    “At Verizon, we strongly feel that ISIS and other terrorist organizations are a threat to democracy and choice across the world. We were going to take a stand by refusing to re-broadcast traffic coming from IP addresses known to be affiliated with terrorism. The FCC rules, in this case, are compelling Verizon to retransmit this traffic from contemptible sources, in effect making verizon complicit in the doings of these organizations. We thus find these rules to be an unconstitutional compelling of speech by the FCC”

    Do I win?

  10. What is the downside for agencies trying this kind of thing again and again? The worst thing that happens for them is taxpayer-funded attorneys get a payday.

  11. Comcast is of course suspiciously absent from the fight, cause, you know, they probably like the idea of a regulatory regime they can control.

    1. Comcast is actually legally bound by an earlier agreement to not challenge this stuff

      1. Zow. The government has gone full Mussolini.

        The goal of the internet is to make Netflix run on time. Innovation shminnovation.

      2. Really? Could you post a link to where I can read about this? I haven’t heard of this before.

        1. I don’t have a great link, but it was part of the Time Warner merger deal

  12. “Arbitrary, Capricious, and An Abuse of Discretion”

    But if we take that away from the government, what’ll be left?

  13. I hope the FCC fails once more, but don’t count on it. We are on track to unlimited governmental regulation at the federal level due to the “supreme” court rulings based on the Interstate Commerce Clause. POTUS has evisceration almost all Constitutional restriction of the Governments’ intrusion into individual rights.

  14. Oh please people, wake up and see this declaratory rulings have absolutely no chance of being declared invalid.
    Lets make these businesses regret trying to stand up to over four-million Americans asking for Title II.

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