We knew they’d be coming and the first attempts to block the FCC’s new rules for the Internet have hit the courts. The United States Telecom Association and Texas-based Alamo Broadband both filed petitions yesterday in federal court to plant a flag against the highly charged net neutrality regulations that the FCC passed on February 26 and published the text of on March 12. And the petitioners are pulling out all the stops to halt the Internet being classified as a public utility – including the Constitution.
“US Telecom seeks review of the Order on the grounds that it is arbitrary, capricious, and an abuse of discretion …violates federal law, including, but not limited to, the Constitution, the Communications Act of 1934, as amended, and FCC regulations promulgated thereunder; conflicts with the notice-and-comment rulemaking requirements …and is otherwise contrary to law,” said the D.C.-based trade group in its Monday filing with the D.C. Circuit Court of Appeals (read it here).
To give you a sense of who US Telecom is playing proxy for, its Board of Directors has AT&T Senior EVP James Cicconi and Verizon SVP Craig L. Silliman among its members. Filed in Fifth Circuit in Louisiana, the similar Alamo petition (read it here) asks, “this Court hold unlawful, vacate, enjoin and set aside the Order and provide such additional relief as may be appropriate.”
“We believe that the petitions for review filed today are premature and subject to dismissal,” says an FCC spokesperson. Before this latest round of new rules, previous lawsuits against the FCC were tossed because they were filed too early.
Here’s the thing: In a situation that arose out of the cutting 2010 lawsuit Verizon brought against the FCC over Internet rules, both petitions kind of agree with the Commission’s flack, so to speak. “USTelecom is filing this protective petition for review out of an abundance of caution,” says the group’s Monday paperwork. What is at dispute is actually when opponents of the FCC’s partisan-passed new rules have to start fighting against the government. The procedure is that companies like Alamo and organizations like USTelecom have a 10-day appeal window after an FCC order is issued.
However, it seems that those against net neutrality aren’t really sure when those 10 days actually start. Is it on March 12 when the FCC’s rules to stop service providers from blocking or throttling any content company’s transmissions were made public? Or is it when those rules are published in the Federal Register? The former was last week, but the latter hasn’t happened yet. We do know that the net neutrality rules and regulations are set to kick in 30 days after they’re printed in the Federal Register.
USTelecom says it will refile its petition against the FCC and the U.S. government if Monday’s action was jumping the gun. Either way, and as tentative as they are, these may be the first challenges to the new rules of what was once so quaintly called the Information Superhighway – they will not be the last.
Michael Kellogg and Scott Angstreicj of Washington DC’s Kellogg Huber Hansen Todd Evan & Figel PLLC are representing US Telecom. Kathleen Sullivan of NYC-based Quinn Emanuel Urquhart & Sullivan LLP is working with them and the group’s in-house counsel Jonathan Banks. Andrew McBride, Brett Shumate and Even Klindera Reed of DC-firm Wiley Rein LLP are representing Alamo.