The FCC anticipates that large cable companies will sue the agency after it votes into place net neutrality regulations. This would be a mere repeat of history. It will have the clarifying impact of forcing hands: Companies that tried to split the fence will be decidedly on one end of it or the other.
Here’s Chairman Tom Wheeler from earlier today, as quoted by The Hill: “The big dogs are going to sue regardless of what comes out. […] We need to make sure that we have sustainable rules, and that starts with making sure that we have addressed the multiplicity of issues that come along and are likely to be raised.”
Read simply, Wheeler is pointing out that anything his agency puts into place that can’t withstand a well-funded lawsuit is moot. This makes the current tussle concerning what legal foundation to base new net neutrality regulations on a bit more important than it might appear at first glance.
Wheeler continued: “I want to move on open Internet rules with dispatch.” The FCC now expects to move on net neutrality in 2015. A vote in December had been widely expected.
The President recently entered the fray with a call for strong net neutrality rules, and use of Title II, which would most certainly draw legal ire. We know that because it’s already been promised. Two quotes, for flavor, from two ISPs [Bolding: TechCrunch]:
Reclassification under Title II, which for the first time would apply 1930s-era utility regulation to the Internet, would be a radical reversal of course that would in and of itself threaten great harm to an open Internet, competition and innovation. That course will likely also face strong legal challenges and would likely not stand up in court
Moreover, if the government were going to make such a momentous decision as regulating the entire Internet like a public utility, that decision is more properly made by the Congress and not by unelected regulators without any public record to support the change in regulation. If the FCC puts such rules in place, we would expect to participate in a legal challenge to such action.
So Wheeler isn’t blowing smoke. This is going to happen.