Big Telecom Again Takes Net Neutrality To Court, But Faces Long Odds

Back in April the Biden FCC finally got around to restoring both net neutrality rules, and the agency’s Title II authority over telecom providers. The modest rules, as we’ve covered extensively, prevent big telecom giants from abusing their monopoly and gatekeeper power to harm competitors or consumers. They also require that ISPs be transparent about what kind of network management they use.

Contrary to a lot of industry and right wing bullshit, the rules don’t hurt broadband investment and they’re not some “radical government overreach.” They’re some very basic guidelines proposed by an agency that under both parties is generally too feckless to stand up to industry.

But big telecom giants like AT&T and Comcast have unsurprisingly challenged the rules once again in the Fifth Circuit, the Sixth Circuit, Eleventh Circuit, and the D.C. Circuit as they seek a lucky lottery draw. At the same time, they’ve filed a petition asking the FCC to pause the rules (set to take effect July 22), claiming (falsely, as it turns out) that the agency’s decision was illegal (all consumer protection efforts are illegal if you’re ignorant enough to ask an AT&T or Comcast lawyer’s opinion about it).

Big ISPs, as usual, insist that if net neutrality is to be addressed, it should be done by Congress:

“The good news is that the FCC’s action will be overturned in court. Congress has always been the appropriate forum to resolve these issues.”

Telecom lobbyists, which spend an estimated $320,000 every day lobbying Congress, enjoy making this claim hoping you’re too daft to realize that Congress has long been too corrupted by corporate influence to do this (or much of anything else on consumer protection or consumer privacy). They know they have Congress in their pockets, and they’re obviously working hard on the courts.

Unfortunately for big ISPs, legal history hasn’t been in their favor. This particular debate has wound through the legal system several times now, and each time the courts have ruled that the FCC has the legal right to reclassify broadband and impose net neutrality under the Telecom Act — provided they provide hard data supporting their decisions.

Big ISPs, like most corporations seeking an accountability-free policy environment, are hoping that the right wing Supreme Court’s looming attack on regulatory independence results in the rules being killed. But that’s no guarantee, given the FCC’s authority over telecoms has been more roundly tested via legal precedent than a lot of other regulatory disputes.

Even if telecom giants like AT&T land a corrupted judge willing to overlook all functional legal precedent and foundational reason (which happens a lot these days), they’re in a terrible position to try and stop states from stepping in to fill the void.

When the Trump FCC killed net neutrality in 2017, the tried to simultaneously ban states from stepping in to protect broadband consumers. But the courts have ruled repeatedly that the federal government can’t abdicate its authority over broadband consumer protection, then tell states what to do.

So if big telecom and the Trumplican courts once again kill FCC net neutrality protections, the groundwork is set for states (many of which already have passed laws) to once again fill the consumer protection void.

As the longstanding corporate and right wing legal assault on federal regulatory oversight culminates in Supreme Court “victory,” you’re going to see some variation of this play out across numerous fronts. Except unlike in telecom, a lot of the disputes will be of the life and death variety.

The goal is to effectively lobotomize all federal oversight of corporate America, bogging down absolutely any federal reform effort down in a perpetual legal quagmire. The stakes of that across labor, consumer protection, public safety, and the environment are profound and boundless, but for whatever reason, large segments of the press and public still haven’t quite figured out what’s coming.