One of the main arguments for the trade groups and ISPs that have filed six—yes, six—lawsuits against the U.S. Federal Communications Commission’s net neutrality rules is that the agency violated a 69-year-old administrative procedure law in crafting the new regulations.
The two ISPs and four trade groups filing lawsuits in recent days have challenged the FCC’s decision—as part of the new net neutrality rules—to reclassify broadband as a regulated, common-carrier service, instead of its long-standing classification of broadband as a lightly regulated information service. The plaintiffs, in addition to accusing the FCC of violating administrative procedure, will argue the agency violated ISPs’ constitutional rights.
The lawsuits come from two ISPs—AT&T and Alamo Broadband—and trade groups CTIA, the United States Telecom Association (USTelecom), the National Cable and Telecommunications Association and the American Cable Association. Alamo and USTelecom filed lawsuits in late March, with the trade group refiling its suit on Monday. AT&T and the three other trade groups filed lawsuits on Tuesday.
The cases are in their infancy. The lawsuits were filed in two U.S. appeals courts, but will likely be combined, and the parties will file dozens of court documents over the coming months. Some plaintiffs may also seek to have the appeals court stay, or put a hold, on the FCC net neutrality rules.
Not enough warning
The plaintiffs will argue, among other things, that the FCC violated the Administrative Procedure Act, a 1946 law that governs the way U.S. administrative agencies can make new regulations. The basic argument is this: The FCC didn’t develop a sufficient record to support reclassification, and the agency didn’t give adequate notice that it was planning to reclassify the service, said Jonathan Banks, USTelecom’s senior vice president for law and policy.
The plaintiffs will note that FCC Chairman Tom Wheeler’s first net neutrality proposal, last May, would have created new rules without reclassifying broadband under the telephone-focused Title II of the Telecommunications Act. The plaintiff’s lawyers will argue that Wheeler didn’t change his mind about reclassification until late in the year, and the agency gave no official notice of the change until it voted on the rules on Feb. 26.
FCC lawyers will counter that Wheeler’s May notice asked for comments on whether the agency should consider Title II reclassification. As for a sufficient record, they will point to the agency’s 400-page order, released after the commission’s vote for the rules.
The plaintiffs will likely also argue that the FCC has violated ISPs’ constitutional First Amendment free-speech rights by requiring them to provide the same speeds to other Web traffic as their own Web traffic, even though most ISPs have said they have no plans to block or throttle other traffic. The groups suing the FCC may also argue that the agency violated ISPs’ Fifth Amendment rights by taking their private property for public use without paying “just compensation.”
Many of the court filings include language saying the FCC’s net neutrality order is “arbitrary, capricious, and an abuse of discretion.” The filings also say the rules violate federal law, including the Constitution, and conflict with “the notice-and-comment rulemaking requirements” of the Administrative Procedure Act.
The original court filings in the six lawsuits are all short, generally running two to three pages, thus providing little more detail about the direction the plaintiffs will take. Longer briefs will be filed in the coming months.
So who’s behind these lawsuits? Four of the six lawsuits are filed by trade groups, perhaps an effort to shield ISPs from public backlash. In some cases, however, individual members may not agree with the trade group’s decision to file a lawsuit.
AT&T filed its own lawsuit. The company, based in Dallas, has about 16 million wired broadband customers and 121 mobile customers. AT&T is also a member of CTIA and USTelecom, two of the trade groups filing lawsuits against the FCC and the same Washington, D.C., law firm, Kellogg, Huber, Hansen, Todd, Evans and Figel, is assisting with all three of those lawsuits.
Alamo Broadband, based in Elmendorf, Texas, offers VoIP and wired broadband for homes and businesses, among other services.
National Cable and Telecommunications Association: High-profile members include Comcast, Time Warner Cable and Cox Communications, but equipment providers, including Cisco Systems and Alcatel-Lucent, and cable-related services, including Home Box Office, TiVo and the Weather Channel, are also members.
United States Telecom Association: Members include large telecom providers AT&T, Verizon Communications, CenturyLink, Windstream and Frontier Communications.
CTIA represents the mobile industry. Members include AT&T, Verizon Wireless, Sprint, T-Mobile USA, U.S. Cellular, along with suppliers including Microsoft, Nokia, Blackberry, Cisco and Ericsson. It’s worth noting that Sprint endorsed reclassification of broadband, and T-Mobile said it didn’t have strong objections, although it preferred the FCC take a different approach.
American Cable Association: The trade group has about 850 small and mid-size cable providers as its members. The membership list includes Great Plains Communications, based in Blair, Nebraska; Wide Open West (WOW) based in Denver; TDS Telecom, based in Madison, Wisconsin; and CableONE, based in Phoenix.