Court Battle May Follow Open Internet Rule-Making

While lawmakers have proved to be more than willing to weigh in on the Federal Communications Commission’s open Internet rule-making, and some have threatened legislation, the legislative branch likely isn’t the area of government that worries the FCC most.

The FCC is only undertaking its current rule-making because of a federal court decision that struck down its 2010 Internet rule, and listed some specific requirements for how the commission could move forward for future regulatory proposals.

FCC Chairman Tom Wheeler said throughout 2014 that one of his top concerns was developing a rule that would not only ensure that all data is treated equally, but could withstand a court challenge.

That concern was on the minds of FCC staff contemplating using Title II of a 1934 communications law to regulate Internet service providers, he said.

Wheeler’s most recent public comments indicate that Title II will play a role in the new rule. Legal experts are divided on what that will mean in court. On the one hand, they say the FCC has broader authority under Title II, a well-established set of powers used for phone companies and other common carriers. On the other hand, using it for Internet service providers requires going into untested legal waters.

Companies including Verizon, the plaintiff in the case that killed the 2010 rule, have threatened to sue the FCC if it utilizes Title II.

Fear of a lawsuit might not deter the FCC much, however — the commission is counting on getting sued no matter what the rule looks like.

“The big dogs are going to sue us regardless of what comes out,” Wheeler told reporters late last year.

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