What's next for the FCC and net neutrality?

The agency's vote for net neutrality rules will likely lead to a lawsuit and to repeal attempts in Congress

By Grant Gross, IDG News Service
December 27, 2010 01:12 AM ET

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In a historic decision, the U.S. Federal Communications Commission voted on Dec. 21 to approve network neutrality rules, but that action will not bring an end to a long debate about the need for regulations prohibiting broadband providers from selectively blocking Web traffic.

Also read: FCC's net neutrality rules released in full

The chances of a lawsuit challenging the rules are extremely likely, according to most FCC observers. And several Republicans in Congress have promised attempts to repeal the rules, although the chances of success there are slim.

The burning question about a lawsuit is not if it will happen, but who will file it.

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"Everything the FCC does gets taken to court," said Art Brodsky, communications director for Public Knowledge, a digital rights group that criticized the rules as too weak. "That's a pretty safe bet. Who's going to do it? There are lots of suspects."

The obvious suspect to file a lawsuit would be a broadband provider. However, two major ISPs, AT&T and Comcast, have indicated initial support for the new rules, although the full text of the rules was made available late Thursday, just before a long Christmas weekend for many people.

Verizon Communications said the FCC made the rules "without solid statutory underpinnings"; a spokesman declined to comment about the possibility of a lawsuit. USTelecom, a trade group representing broadband providers, and several smaller providers have also voiced opposition.

But a lawsuit could come from other quarters as well, even though other groups might have more difficulty proving they have standing to file a lawsuit. Brodksy and Aparna Sridhar, policy counsel at media reform group Free Press, both suggested a lawsuit could come from a broadband customer, such as a public-interest group or think tank, that disagrees with the direction of the rules.

A mobile applications provider that doesn't think the rules protect its ability to market its products might also be a candidate to sue, Sridhar said.

A number of groups, both those that question the FCC's authority to enact the rules and those that think the rules don't go far enough, could seek to file lawsuits, added Mike Wendy, director of MediaFreedom.org, an antiregulatory advocacy group. "Theoretically, my group could file, but that's costly," he said. "Who knows -- this stuff brings parties out of the woodwork."

But a challenge from groups that want stronger rules seems unlikely, said Randolph May, president of the Free State Foundation, an antiregulation think tank. "You would think there would be some ISP somewhere, even a small one, that would bring a court challenge," he said. "Despite the professions of Free Press and its allies ... I doubt if a challenge will come from the pro-net neutrality folks. I think now they will just turn their energies to trying to get the FCC to interpret and enforce the rules in the most regulatory way possible."

The likely question in a lawsuit, at least from groups opposed to net neutrality rules, is whether the FCC has the authority to create the regulations. In April, the U.S. Court of Appeals for the District of Columbia Circuit struck down an attempt by the FCC to enforce informal net neutrality principles in place since 2005, and many critics of the FCC's net neutrality vote question how the FCC can assert new authority after that setback.

The IDG News Service is a Network World affiliate.