Advocates of strong net neutrality rules are calling for the U.S. Federal Communications Commission to reclassify broadband as a regulated utility, but such a move would trigger a lengthy court fight between the agency and broadband providers, some telecom law experts say.
With net neutrality back on the FCC's agenda in recent weeks, many net neutrality — including digital rights groups Free Press and Public Knowledge — have resurrected their long-time push for the FCC to reregulate broadband as a traditional telecom service as an alternative to FCC Chairman Tom Wheeler's proposed set of regulations, released in late April, that they view as too weak.
Despite a large public outcry — the FCC has received more than 45,000 public comments in the past month, with many calling for reregulation — some telecom law experts question whether the agency will take that step.
"People at the FCC refer to broadband reclassification as the nuclear option," said Jonathan Jacob Nadler, a telecom regulation lawyer with the Squire Sanders law firm in Washington, D.C. "It's just not going to happen."
The FCC, in a public notice of proposed rules released earlier this month, asked for comment on Wheeler's proposal, which would allow broadband carriers to engage in "commercially reasonable" traffic management, and also on whether the FCC should reclassify broadband as a common-carrier telecom service subject to utility-type regulations under Title II of the Telecommunications Act.
But Nadler and some other telecom regulation experts expect a huge legal backlash if the FCC moves toward Title II regulation. "If the FCC were to reclassify broadband as a telecom service, lawyers for the major telcos and cable systems would immediately start lining up in front of the court of appeals and would file petitions for review within minutes after the order was published," Nadler said.
Broadband providers would argue that reclassification is a "trillion-dollar bait-and-switch," said Scott Cleland, chairman of the NetCompetition advocacy group supported by broadband providers. Providers would argue that a change in classification would be arbitrary and capricious, the classic language of a challenge to agency regulations.
"Promising an industry light regulation to encourage $1.2 trillion in private risk capital investment, and then after it's built, breaking that promise, would be the [ultimate] arbitrary and capricious FCC action," Cleland added. "Expect a tsunami of legal challenges against any FCC reclassification decision in multiple courts pursuing multiple different legal challenges and theories in order to stay and overturn the FCC decision."
Harold Feld, senior vice president at Public Knowledge, downplayed potential arguments by broadband providers. In a handful of recent Supreme Court cases, justices have suggested the FCC has the authority to change its mind, he noted.
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