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 noticeThe
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 justificationThe
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 forbearanceWhen
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.