Legal challenges to FCC decisions coming soon

by Steve Blum • , , ,

Washington-based lobbying groups are making the first rumblings of legal challenges to the FCC’s decision to bring common carrier regulation to Internet service and infrastructure. Reuters is reporting that telecoms companies plan to let their trade associations take the lead on legal challenges.

We might see the first filings this week. The first step is for the FCC to publish the text of the ruling in the Federal Register, which might happen in the next few days. Harold Feld at Public Knowledge has an excellent blog post on how that process works and what the timing will likely be. There’s a 60-day window to take the FCC to court.

That clock is already running for anyone thinking about challenging the FCC’s other decision last month, the one that says that states can’t restrict what municipal broadband systems do. So far, no challenges have been filed but expect it to happen. The states involved – Tennessee and North Carolina – are sure to take it to court, and a national lobbying organisation for state legislators has already promised to do so.

It will be an uphill battle to overturn the new common carrier rules. In terms of the big picture, the FCC seems to be on pretty firm ground. There’s a clear basis for its authority to make that kind of decision, so legal challenges will probably try to nibble around the edges, or claim the process was flawed. It’s doubtful that’s enough to kill it, but it could put everything on hold for a couple of years while the courts grind through it.

The muni broadband decision is on shakier ground. A blog post by an attorney at Davis Wright Tremaine – a law firm with heavy high tech connections – does not offer much hope, saying “the Commission’s reasoning goes beyond known precedent on the authority of a federal agency to preempt state laws”.public