FCC Head Wheeler Braces for Legal Challenge to Net Neutrality Rules

By Josh Long

FCC Chairman Tom Wheeler wants to ensure the Net neutrality regulations adopted by his agency can withstand a legal challenge. He has no illusions that the regulations won’t end up in court.

“Let’s make sure that we understand what is going on here. The big dogs are going to sue regardless of what comes out,” Reuters quoted Wheeler as saying during a meeting last Friday. “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.”

The FCC is not expected to vote on Net neutrality regulations until next year.

Wheeler’s predecessor, Julius Genachowski, adopted Internet regulations in 2010, prohibiting fixed broadband providers from blocking lawful content, applications and services and unreasonably discriminating on their networks. Those regulations, known more formally as the “Open Internet Order,” were overturned following a successful legal challenge by Verizon Communications. In January, a federal appeals court in Washington, D.C., ruled the Commission was unlawfully seeking to subject broadband providers to “common carrier” regulations even though the agency classified the companies differently.

Verizon and AT&T are almost certain to file a challenge if the FCC chooses to subject broadband providers to Title II regulation under the Communications Act of 1934. Should the FCC reclassify the Internet as a Title II service, “the ISPs, and perhaps some in the tech industry, will have no choice but to fight the sudden reversal of two decades of settled law,” Verizon general counsel Randal Milch wrote in a blog this month.

The Commission faces a Catch 22 because it may be just as likely to face a legal challenge from consumer groups if it doesn’t adopt the Title II approach.

“The FCC should have all of the information and motivation it needs to make the right decision and protect Internet users by reclassifying broadband providers as common carriers under Title II of the Communications Act,” said Craig Allen, president and CEO of Free Press, in a statement last week.