By Julian Hattem - 03/29/15 08:00 AM EDT
The tough net neutrality rules adopted by Federal Communications Commission (FCC) are under attack on a variety of fronts.
While the FCC under chairman Tom Wheeler last month decided to treat Web providers such as Comcast and Verizon like public utilities, there’s no guarantee the rules will survive a series of challenges that could see them struck down, replaced or simply rendered toothless.
Just this week, major Internet service providers filed a first lawsuit aimed at killing the rules
This week, the U.S. Telecom Association — a major trade group — and Texas-based Web service company Alamo Broadband filed separate lawsuits against the FCC orders, claiming that they violate the law.
When they do, lawyers on both sides will spring into action.
“I don’t think it’s [an] open and shut” case, said Jennifer Bagg, a partner at the Harris, Wiltshire & Grannis law firm.
In their 80-page dissenting opinions against the regulations, Republican FCC Commissioners Ajit Pai and Michael O’Rielly poked legal holes in the regulations, accusing the agency of moving forward too quickly and not providing enough justification for the action, among other things.
“It gives parties who want to appeal a roadmap to follow,” Bagg said.
Key Republicans in Congress have for months been trying to replace the FCC’s rules with legislation of their own.
A plan from leaders of the House and Senate Commerce Committees would seek to enshrine some net neutrality protections in law, such as preventing Internet service providers from blocking or slowing access to particular websites or from erecting online “toll roads” that forced websites to pay for faster service.
At the same time, their plan would seek to limit the FCC in some ways, such as by preventing it from ever treating the Web like a public utility and restricting its ability to use broad legal powers to reduce barriers to the growth of broadband Internet services.
Those Republicans have yet to find supportive Democrats — who would be crucial to avoid both a Senate filibuster and presidential veto — though several have expressed some willingness to negotiate, if only to ensure that the FCC’s regulations aren’t undone by a court.
During the Senate’s marathon “vote-a-rama” on budget amendments this week, the upper chamber unanimously approved of a measure from Sens. John ThuneJohn ThuneApple, Google enlisted for FCC robocall effort Fidelity denies lobbying for student loan tax break Republicans see fresh chance to overhaul telecom law MORE (R-S.D.) and Bill NelsonBill NelsonZika is a public health emergency; we need to work together to confront this head on New study. Space, security, and Congress Puerto Rico task force asks for help in charting island's economic course MORE (D-Fla.) calling for “clear and certain rules” that “preserve and protect the open Internet.”
The measure was symbolic and carried no force of law, but it could point toward future collaboration, Thune said.
“Passage of this amendment is a good omen that Congress can come together, on a bipartisan basis, to address uncertainty facing the Internet and consumers,” he said in a statement.
A new president
Even if the courts rule in favor of the FCC and Congress doesn’t act, the new regulations are guaranteed only as long as the agency doesn’t decide to change course.
If a Republican takes over the White House in 2016 and appoints a GOP chairman of the FCC, a shift in approach could well happen.
So far, practically all the major Republicans vying for a presidential nomination have opposed the regulations, which they see as an overreach by the FCC and a capitulation to President Obama, who in November made an unusually vocal call for the agency to act aggressively.
Pai, the Republican FCC commissioner, is on record asking Republicans in Congress to use their power of the purse to force the agency to abandon course.
“Congress should forbid the commission from using any appropriated funds to implement or enforce the plan the FCC just adopted to regulate the Internet,” he told lawmakers on a House Appropriations subcommittee this week.
“Heavy-handed regulation does not come cheap,” he added. “The FCC has already wasted millions of dollars developing these regulations, and we are on course to waste millions more.”
So far, lawmakers don’t appear to be jumping at the chance to use that power.
Rep. Ander Crenshaw (R-Fla.), chairman of the Appropriations subcommittee with authority over the FCC, said he was “not working on it right now.”
Still, the option could be attractive for lawmakers looking to kill the regulations.
If the rules survive in court, make it through the gauntlet of Congress and are left intact by the next president, procedural rules at the FCC could end up being their undoing.
The agency has an internal provision saying that any application for regulatory exemptions is automatically granted if it is not acted upon within one year — a measure that was intended to prevent the agency from ignoring petitions.
For now, given the FCC’s current makeup of three Democrats and two Republicans, any company asking for exemptions to the net neutrality rules is likely to be rejected.
But if that should happen to change — for instance, if a Democratic president is unable to move his or her nominees through a GOP-controlled Senate after the current commissioners’ term expire — the agency could be stuck in a 2-2 deadlock, which would automatically grant an exemption, known as forbearance.
“It’s not too far out there,” former Rep. Rick Boucher (D-Va.), who helped write the 1996 law undergirding the FCC’s authority, recently told The Hill.
“In that circumstance, if a forbearance petition is filed and they don’t act on it, it could be deemed granted.”