Shots fired in new Web war

The war over net neutrality is about to see its fiercest fighting yet.

Groups representing virtually every corner of the cable and telecom industry have unleashed a barrage of lawsuits against the Federal Communications Commission’s (FCC) new Internet regulations, in what has all the makings of a heavyweight bought destined to go all 12 rounds.

For supporters of the tough rules, it’s either win in court or go home empty handed.

{mosads}“There are no guarantees,” said Matt Wood, the policy director at Free Press, which has advocated in favor of tough Web rules. “So I would never say it’s a slam dunk or a fait accompli, but we think the FCC has made the best choice it can on the law.”

“It’s better to go in fighting on your strongest argument rather than on a weaker one that you kind of make up as you go along,” he said.

The first lawsuits against the net neutrality regulations — which seek to prevent companies from interfering with people’s access to the Internet — were filed mere hours after they were published in the Federal Register. By the end of the week, more than a half-dozen lawsuits had been filed.

The challengers include major trade groups like the U.S. Telecom Association, the National Cable and Telecommunications Association and CTIA-The Wireless Association. AT&T also filed a suit, as did CenturyLink and other smaller companies.

It will take months — and maybe years — for the cases to be resolved, raising the possibility that an issue President Obama has been pushing since his 2008 campaign will remain unsettled when he leaves office.

“There are questions of substance, questions of process and some constitutional questions,” said Barbara van Schewick, the director of Stanford Law School’s Center for Internet and Society and a prominent net neutrality scholar.

The most prominent argument surrounds the FCC’s decision to reclassify broadband Internet from an “information service” to a “telecommunications service” under Title II of the Communications Act. Telecommunications services — such as traditional phone lines — are regulated more tightly under the law, and cable companies say the extra restrictions will hinder them from delivering newer and better services.

“Our concern is Title II has a long track record of not incenting the levels of innovation and investment that we expect out of the Internet,” Jonathan Banks, a senior vice president at USTelecom, told reporters after his organization filed its suit.

Opponents of the FCC’s move say that it can’t simply change its mind on reclassification after actively defending broadband as an “information service” for the last decade.

“To the extent the FCC is saying this is our decision, it’s not,” said one telecom industry lawyer who spoke on the condition of anonymity in order to discuss the case.

The FCC only has the authority to change course on a regulatory matter if the underlying law is unclear, industry groups say. In this case, that underlying statute was last updated in 1996, when dial-up Internet was cutting edge.

“Where the statute creates ambiguity or says ‘We’re going to delegate’… then of course, within that range, they have discretion,” the industry source said. “The question for the case is, does this fall within that range?”

Net neutrality advocates believe it does.

As evidence, they point back to a 2005 Supreme Court case that authorized the FCC to declare Web access an “information service” in the first place.

In that 6-3 decision, Justice Clarence Thomas wrote that the law’s “silence” about some classifications “suggests … that the Commission has the discretion to fill the consequent statutory gap.”

Opponents of the rules will also argue that the FCC failed to provide fair notice about the possibility of the new “common carrier” treatment of the Internet. The FCC did practically a complete 180-degree turn from the original proposal unveiled by Chairman Tom Wheeler last year, which declined to reclassify broadband Internet service and instead would have opened the door to online “fast lanes” for companies that pay more.

The new rules also extend the prohibitions, for the first time ever, to wireless service on people’s cellphones and tablets. The wireless industry is sure to argue that the step conflicts with provisions in the law preventing “private mobile radio services” — like wireless data service — from being treated like a common carrier.

Finally, Van Schewick suggested that companies could turn to the First Amendment of the Constitution as a final backstop against the rules, by arguing that providing access to the Internet is no different than being an editor at a newspaper. Seen in that light, regulators would be limiting companies’ free speech by dictating how they can and cannot affect people’s traffic. 

It could be months before the case is assigned to a court and until briefs are filed.

The looming period of uncertainty has prompted some calls for Congress to step in and clarify the law.

A group of Republicans in both the House and the Senate have begun work on legislation to prevent Web providers from blocking or slowing people’s access to the Internet, or from erecting online “toll roads” for faster service. Democrats have yet to endorse the plan, however, fearing that other measures in the draft legislation could handicap the FCC in other ways.

The partisan split probably won’t change for another “month or two,” said Rep. Greg Walden (R-Ore.), who leads the House Communications subcommittee and has been helping to lead that legislative effort.  

“We still have our bill in draft form, open for discussion,” he said off the House floor this week.

“I’d much prefer going down that route than this litigious route, that’s going to cost taxpayers a lot of money to defend a decision by the FCC that’s strictly on partisan lines that is not good for innovation and policy and consumers.”