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Digital Watch: Congressional & Legal Challenges to Open Internet Order Begin

It’s not like we didn’t see it coming. The FCC is taking flak from Congress about its Open Internet rules passed last month, and this week the first wave of lawsuits has been filed. The United States Telecom Association is the biggest plaintiff, representing the nation’s largest broadband providers. The other suit was filed by Alamo Broadband, a small Texas-based ISP.

In its suit, US Telecom charges that the Open Internet Order “is arbitrary, capricious, and an abuse of discretion,” and violates federal law, including both the Constitution and the Communications Act. On its blog the group says it ”supports open Internet rules, but disagrees with the Federal Communications Commission’s decision to reclassify broadband Internet providers as common carriers."

There is some debate about whether or not these suits are actually premature, since the Order itself does not go into effect until sixty days after being published in the Federal Register–something that has not happened yet. For its part, the FCC contends the lawsuits indeed are premature.

As communications attorney Harold Feld explains, US Telecom is covering its bases with the early petition. There’s the off chance that a court could find that because the Order is a complex beast, with aspects that qualify as “adjudication,” as well as rulemaking, that the window for filing a challenge was ten business days after release. Feld thinks this is unlikely, resulting in either these suits being dismissed, or the Appeals Court sitting on them until sixty days after the Order is published in the Federal Register.

FCC Chairman Wheeler has come in for heavy doses of criticism in his appearances in front of several Congressional committees since the Open Internet Order passed. Mostly these are cases of all smoke, no fire. While Republicans control Congress and the committees and generally oppose the Commission applying Title II utility regulation to internet service, it’s not clear there are enough votes in either the House or the Senate to pass legislation to change or nullifying the Order.

Republican Senator John Thune and Representatives Greg Walden and Fred Walton have been working together on proposals for legislation that would kill Title II, while also implementing many aspects of Open Internet protections, like a ban on creating a paid “fast lane.” This proposal is more net neutrality-like than any coming from Republican legislators before, and could appeal to some Democrats, though it’s not clear how wide support is even amongst Republicans.

It’s a serious question how many Dems want to oppose the FCC and the President on the issue. Furthermore, President Obama is not particularly likely to sign such legislation, if passed.

An alternative approach for circumventing the Open Internet Order was suggested by suggested by Wheeler’s own colleague, Commissioner Ajit Pai, at a Monday hearing of the House Appropriations Subcommittee on Financial Services and General Government. Pai told the assembled representatives that “Congress should forbid the commission from using any appropriated funds to implement or enforce the plan the FCC just adopted to regulate the Internet.” Again, such a move would require the President’s signature, though bundling it in with other appropriations makes it a more effective bargaining chip.

Expect more smoke and dust as the ISPs and their pals in Congress run around looking for ways to puncture the Open Internet Order. This will be a long fight, and most probably resolved by the Appeals Court, and not any time too soon.

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