Key Deadline in Net Neutrality Lawsuit This Week

The widely embraced (except by telecom companies) new net neutrality regulations have been in effect for nearly two months now, but their permanence is still being contested.

When the US District Court for the District of Columbia denied requests last month to delay implementation of the new regulations, adopted by the Federal Communications Commission in February by a 3-2 vote, it promised an expedited review of the legal case against the FCC’s requirements.

Part of that promise required the parties in the lawsuit to file their opening briefs in the case by Thursday, July 30, in order to have final briefs filed by October 13.

According to a number of reports, including articles from Law360 and MultiChannel.com, the plaintiffs in the case, which include five separate lawsuits from the National Cable and Telecommunications Association, the American Cable Association, CTIA, AT&T and US Telecom, have been given between 20,000 and 40,000 words for their opening briefs. MultiChannel.com says the joint opening brief from US Telecom and CTIA is not to exceed 20,000 words; the joint opening statement from Alamo Broadband is not to exceed 40,000 words; and the joint opening brief from broadband providers including AT&T is not to exceed 9,000 words. All are due on Thursday.

Law360 adds that the FCC’s briefs are due September 14, and oral arguments will begin after the final deadline for briefs, October 13.  Even after the court’s decision, it’s possible the FCC regulations could be argued before the Supreme Court in the future, not because of the regulations’ content but how they were implemented.

This isn’t the first time the FCC has had to legally defend its efforts to prevent preferential bandwidth access for companies that can pay for faster Internet access; the regulations were instead designed to make them nearly bulletproof in the eyes of the law. The problem with previous efforts to ensure all Internet users have equal and fast access to websites regardless of their ISP or the website they want to use was that opponents argued the FCC had tried to implement regulations on the Internet in a way the mimicked utilities. In order to defeat that argument, the FCC, in the latest net neutrality regulations adopted in February, changed the language in the Telecommunications Act to classify the Internet as a utility, thereby mandating open and free access to websites without restrictions or “tolls” for faster service.

The FCC isn’t united on the regulations, to say the least.

In an opinion piece published last month in the National Review, Commissioner Michael O’Reilly says the new regulations aren’t necessary, because “Consumer can already access whatever Internet content, applications and services they desire. When traffic is treated differently, such as prioritizing a voice call or video stream over an email, it is part of sensible network management. And if you talk to broadband providers, they’ll tell you that this isn’t going to change. The Internet has flourished because of the government’s hands-off approach.”

He adds that President Barack Obama, in one of his first acts in office, called on all federal agencies to consider the costs of implementing any new regulations before they took effect, and asked independent agencies like the FCC to do the same, something O’Reilly says the commission failed to do.

“If the Commission fully adheres to this directive, it should refrain from imposing net neutrality regulations unless there’s evidence of an actual problem it would address, and unless the benefits of the regulations would clearly outweigh the costs,” he says. “But on the issue of net neutrality, the agency has already conceded that there is no current harm to consumers. It has even bragged that the rules would be ‘prophylactic.’”

The district court’s decision is expected early next year. Until then, net neutrality is, and remains, the law of the land.

In the meantime, the FCC has appointed Parul P. Desai to serve the FCC as the Open Internet ombudsperson, the “public’s primary point of contact within the agency for formal and informal questions and complaints” about the net neutrality regulations. She’s also an assistant bureau chief and director of consumer engagement in the Consumer and Governmental Affairs Bureau. In her role with the FCC, Desai handles questions or complaints regarding the open Internet regulations to ensure customers are receiving proper service “to ensure that small and often unrepresented groups reach the appropriate bureaus and offices to address specific issues of concern.”

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