First challenges to FCC common carrier rules enter a legal lottery

24 March 2015 by Steve Blum
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How justice is done.

Two court challenges were filed today with the intent of overturning the FCC’s decision to regulate Internet service and infrastructure using common carrier rules. One was filed in Washington, DC by an industry lobbying group – the US Telecom Association – and the other by a Texan wireless ISP – Alamo Broadband – in New Orleans, both with the respective federal appeals courts there.

US Telecom does not like anything about the rules

US Telecom seeks review of the Order on the grounds that it is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act…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 of [federal law]; and is otherwise contrary to law.

As US Telecom acknowledges its appeal might be too early in the process, but all that means is they’ll re-file later. The New Orleans filing isn’t available yet, but it’s said to take similar tack.

The reason for filing now is to try to beat the deadline for getting in on the appeals court lottery. As Harold Feld explains well in his blog, when challenges are filed in multiple courts within the first ten days of a new regulation becoming effective, the court that gets the case is selected at random. It was the DC appeals court that overturned the FCC’s last attempt at net neutrality rules, which suits the big lobbying groups like US Telecom as well as mobile phone and cable TV trade organisations. No idea if Alamo Broadband thinks there’s an advantage to be had in New Orleans, or, possibly, if it’s a stalking horse for pro-common carrier advocates who might see friendlier judges there.

Update: Alamo Broadband’s filing can be downloaded here. It’s pretty much the same as US Telecom’s.