October 3, 2011 | By Abigail Phillips

Publication of the FCC’s Net Neutrality Rules Spawns a Flurry of Legal Challenges

Now that the FCC’s “Open Internet” net neutrality rules have been published in the Federal Register, opening the door to legal challenges, the lawsuits are piling on.

On Friday, Verizon appealed the order in the Washington, D.C., Court of Appeals, arguing that the FCC overstepped its authority in issuing its net neutrality order. Verizon had filed a related claim back in January shortly after the rules were first released, but the court held that suit prior to Federal Register publication was premature. MetroPCS at the time lost a similar challenge on this basis; it has yet to refile post-publication.

Earlier in the week, Free Press filed a petition in the First Circuit for review of the rules. However, Free Press argued that the order doesn’t go far enough, objecting foremost to the relaxed requirements for wireless as opposed to wireline providers. (We agree this distinction is unwarranted.) At least three other groups have also contended that the rules need to be strengthened, with challenges in the Third, Fourth and Ninth Circuits.

These are the same rules that EFF weighed in on when they were first issued by the FCC in December. While we wholeheartedly support net neutrality in principle, we were concerned on two fronts about the Commission’s efforts. We objected to the FCC’s alleged bases for jurisdiction, which would seem to give it more or less unbridled authority to regulate the Internet. We also objected to the substance of the rules, which are riddled with loopholes that would blunt their effect. These include exemptions to the no-blocking requirements for efforts “to address copyright infringement”—enabling traffic discrimination in the guise of protecting against unlawful content—and concessions for managed or special services, as well as the carve-outs for wireless operators. On the other hand, many noncommercial broadband Internet providers could be bound by the rules, discouraging public-minded Internet initiatives and innovation by imposing the burdens of FCC compliance.

The rules are due to go into effect November 20. But given past federal court rejection of similar FCC authority arguments and the legal challenges to date, we're not anticipating any quick resolutions.


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