Preparing for a court battle, FCC is confident net neutrality will survive

The FCC's net neutrality rules, voted in yesterday, will probably be challenged in court by a broadband provider or trade group. But FCC Chairman Tom Wheeler is confident that the net neutrality rules will stand up to legal scrutiny.

When the FCC voted Thursday to enforce strong "net neutrality" rules by reclassifying broadband providers as “common carriers,” the Commissioners knew that putting the rules in place is only half the battle. Chairman Tom Wheeler’s net neutrality plan will almost certainly be challenged in court by one of the major broadband providers, and the new rules must stand up to legal scrutiny. But Chairman Wheeler says that he’s confident net neutrality will survive a court challenge.

This scenario has played out once before. In 2010, the FCC published its Open Internet Order, which imposed many of the same restrictions on broadband providers as the new net neutrality rules do: no blocking legal content, no throttling Internet traffic based on the source of the traffic, and no “fast lanes” for content providers who pay extra. Verizon sued to block those rules, and in January 2014 the D.C. Circuit Court struck down most of the order, saying that the FCC was trying to regulate broadband providers as though they were common carriers, even though they had never moved to classify them as such.

That ruling set the stage for yesterday’s vote, which moved broadband providers into the Title II “common carrier” category of the Telecommunications Act of 1996. Now the FCC has greater authority to regulate the commercial activities of those providers, though it has explicitly said it won’t meddle with Internet subscription prices or require providers to lease their networks to competitors.

It’s all but certain that Verizon, AT&T, Time Warner Cable, or another broadband provider will sue to nullify the FCC’s new rules. Verizon and AT&T have already publicly expressed dissatisfaction with the net neutrality vote – Verizon even put out a statement in Morse Code to protest what it says is the application of an antiquated legal framework to modern data networks.

Comcast has said it will not sue the FCC, but executive vice president David L. Cohen said in a statement that “we all face inevitable litigation and years of regulatory uncertainty challenging [the] Order.” He added that Comcast has no quibble with the underlying principles of no blocking, no throttling, and no fast lanes, but that the company is uncomfortable with the FCC’s expanded authority.

Michael Powell, a former FCC chairman and president of the National Cable & Telecommunications Association, a trade association that lobbies on behalf of broadband providers, said in a statement, “The FCC has ... pried open the door to heavy-handed government regulation in a space celebrated for its free enterprise.” He added that consumers “will likely wait longer for faster and more innovative networks since investment will slow in the face of bureaucratic oversight.”

The FCC is on pretty solid legal ground with its new rules – in fact, the Order specifically addresses the D.C. Circuit Court’s criticisms of the 2010 Open Internet rules. Still, a legal challenge is almost certain, and only a judicial judgement on that case will tell us whether the “common carrier” classification of broadband providers will stick.