Court case

[Commentary] We may have lost the vote at the FCC, but the fight isn’t over yet. Now it moves to two new venues, both of which will require public support. Chairman Pai may have ignored millions of Americans, but he can’t ignore Congress. Members of Congress have the ability and the authority to quickly reverse Chairman Pai’s unprecedented rulemaking through a law called the Congressional Review Act (CRA).

After the FCC’s vote to scrap its net neutrality regulations, activists will turn to lawsuits, Congress—and the 2018 election. Lawsuits probably won’t be filed until at least January, but it’s already clear that they will challenge the FCC’s vote on both substance and process. The substance argument is a legalistic, almost existential, debate over the true nature of an ISP.  What’s kept the fire burning all these years is the fight over two lousy choices for how to legally classify an ISP.

A May court order requiring continued operation of the state's $90 million "middle-mile" broadband network remains in effect, despite an effort to quash it.  That development comes as the arcane legal dispute mushrooms, nine months after the network operator's surprise bankruptcy filing.

On March 19, AT&T and the Justice Department are expected to head to court to decide the future of Time Warner in what could be a historic legal showdown over a massive $85 billion merger. The timing of the trial could put AT&T in an uncomfortable position as it seeks to buy up one of the world's most valuable media and entertainment conglomerates, known for popular TV channels such as CNN and hit film franchises like the “Harry Potter” series.

Network neutrality supporters are predicting that the Federal Communications Commission will have a hard time defending its decision to repeal its landmark rules in court.  “The draft order seems to say that the FCC is no longer interested in exercising its responsibilities as an expert agency,” said Jonathan Sallet, a former FCC general counsel under the Obama administration. “I do not believe a court of appeals will uphold this order,” he added.

I had the opportunity to go to the Supreme Court to watch the oral arguments in a case called United States v. Carpenter. Carpenter deals with what standard law enforcement must meet to obtain cell site location information from a wireless carrier, which fundamentally is about the appropriate balance between privacy and security. This is an issue of great interest to Verizon.  Verizon joined an amicus brief in the case this summer, and we will host an event in Washington, DC to discuss it in more detail in the new year. 

On December 14th, the Federal Communications Commission will vote to replace current rules enforcing network neutrality. Nothing short of an extinction-level event will prevent it. But before abandoning all hope, know that while the battle for net neutrality at the FCC may have been lost, the war isn’t even close to a conclusion. In reality, the net neutrality fight is merely migrating to a different theater, namely, the US Courts of Appeals. And excluding the possibility of a Supreme Court challenge, the outcome may very well drag on for another year and a half or more.

The impending repeal of net neutrality rules is being used by Charter Communications to fight a lawsuit that alleges the company made false promises of fast Internet service. New York Attorney General Eric Schneiderman in February filed the lawsuit against Charter and its Time Warner Cable subsidiary.

What, if anything, is constraining the Trump Justice Department in its dangerous war on leakers, whistleblowers, and journalists? The Knight First Amendment Institute at Columbia University and Freedom of the Press Foundation are teaming up to find out.

Defenders of the Federal Communications Commission's current Open Internet rules are plotting out a legal challenge to FCC Chairman Ajit Pai’s plan to repeal them. This would be the latest in a series of court battles over FCC net neutrality authority. Several groups including Public Knowledge, Free Press, the Electronic Frontier Foundation, Mozilla and the Computer & Communications Industry Association expressed interest in a legal challenge, which may consume much of 2018.