Posted by: Stephen Wildstrom on September 21, 2009
I am not a lawyer, nor am I a Federal Communications Commission expert. But I can confidently predict that once the network neutrality rules proposed today by FCC chairman Julius Genachowski are adopted—and they will be, since all three Democratic commissioners have expressed support—telecom companies will sue to overturn them.
The prediction is fairly easy because the regulated companies sue every time the FCC attempts to extend its jurisdiction without explicit congressional authorization—and most of the time they win. The four neutrality principles adopted in 2006 have stood up, but the first time the commission brought an enforcement action based on them, the target, Comcast, sued. The case is pending in the Court of Appeals for the District of Columbia.
The original four principles and the two additions proposed by Genachowski strike me as eminently reasonable, but the standard in court is the letter of legislation, not sensibility. The provision that is most likely to draw litigation is the proposal to extend the principles to wireless Internet carriers, which until now have regarded themselves as exempt for net neutrality requirements.