The legal case against Internet rules

By Mario Trujillo - 03/15/15 06:00 AM EDT

As legal challenges loom for new net neutrality regulations, GOP members of the Federal Communications Commission are offering some of the first lines of attack.

The dissenting opinions of the two Republicans ran 80 pages, and they telegraph some of the arguments on which critics could rely as they prepare legal filings to scrap the new rules.

FCC Chairman Tom Wheeler has repeatedly said the commission wrote the rules to withstand challenges from the “big dogs.” And while it is still unclear which organization or company will lead the charge, there is little doubt that a legal battle is brewing.

On Thursday, the public got its first look at the actual text of the net neutrality order, two weeks after it was approved. The rules would reclassify broadband Internet access as a telecommunications service under Title II of the Communication Act. The new designation will give the commission increased authority to enforce rules barring Internet service providers like Verizon or Comcast from prioritizing any piece of Internet traffic above another.

Here are four legal arguments already being lobbed against the new rules.

Not enough notice

The GOP commissioners argue that the public was not given enough notice about the plan to reclassify the Internet and other provisions that made their way into the order. The lack of notice, they argue, is a violation of the Administrative Procedure Act (APA).

The FCC released draft rules last year that relied on alternate authority to enforce net neutrality. Critics have accused FCC Chairman Tom Wheeler of changing course midstream after President Obama made a high-profile public pitch for reclassification.

“Rather than following the proper procedure and issuing a further notice, the FCC charged ahead at the behest of activists who were suspicious of the Commission’s commitment to their cause and thus demanded that agency adopt rules without delay,” GOP commissioner Ajit Pai wrote. “That is not what the Administrative Procedure Act demands nor what the American people deserve.”

The proposed rules last May did include a series of questions asking about reclassification. That, combined with the huge amount of public comment in favor of reclassification, gives Chairman Tom Wheeler and other senior FCC officials confidence that they complied with the law.
 
Not enough justification

The APA also requires the commission to justify the decision made based on the facts on the ground. The GOP commissioners said that record is lacking as well.

GOP Commissioner Michael O’Rielly argued the rules are based on “unsubstantiated fear of future wrongdoing” and said the 4 million public comments the FCC received did not reveal any new instances of abuse justifying the rules.

A court previously accepted the justification for alternate net neutrality rules as a "prophylactic," or preventative, measure to protect innovation. He said there is no guarantee that argument will work again.

“That may have been good enough to narrowly survive review when all that was at stake was net neutrality rules,” he wrote. “But that’s no guarantee that such flimsy reasoning will withstand another round (or two) of scrutiny now that all of Title II hangs in the balance as well.”

Abuse of forbearance

When the FCC reclassified Internet access, it also chose to avoid enforcing many of the more onerous utility-style provisions that come along with it, including rate regulation. The commission did this in a process called forbearance, which allows it to avoid applying certain provisions.

O’Rielly argued the FCC is using the tool to rewrite communications law in a way that Congress did not intend when it approved the tool in 1996. He said it was first implemented as a way to avoid existing regulations during a transition when Congress has just updated communications law for the first time in 60 years.

“It was not meant to be used as a tool to selectively subject new services to previously inapplicable provisions,” he wrote.

“The Supreme Court has made clear that ‘an agency has no power to ‘tailor’ legislation to bureaucratic policy goals’ by interpreting a statute to create a regulatory system ‘unrecognizable to the Congress that designed it,’” he said, quoting from a 2014 Supreme Court opinion involving the Environmental Protection Agency.
 
Mobile broadband restriction
 
For the first time, the FCC decided that net neutrality rules would cover mobile broadband, given its increasing chunk of the Internet market. But the wireless industry has been arguing for months that a section of the Communications Act specifically prevents mobile broadband from being classified as a telecommunications service, and thus a common carrier.

The GOP commissioners ticked off precedent showing that is the case, including a court ruling last year that found “the treatment of mobile broadband providers as common carriers would violate Section 332.”

The order redefined a series of terms in order to get around that, by arguing the landscape has changed in the 20 years since the initial provision was put in place. The order expressed confidence that the change complies with Congress's intent and that the commission gave adequate public notice of the potential change.