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Remember the Alamo? Texas ISP one of the first to challenge FCC's new neutrality rules

the alamo

via Flickr © StuSeeger (CC BY 2.0)

And so it begins… Just as a few isolated of raindrops pattering down onto a dry and dusty Western sidewalk can be the harbinger of a heavy summer deluge to come, the first few legal challenges to the new US net neutrality rules have just plopped fatly onto the desks of the apparatchiks at the Federal Communications Commission (FCC). Expect a flood to follow.

The first plaintiffs are quick off the mark as the new net neutrality rules have not actually taken effect as they have not yet been 'gazetted' in the Federal Register, but then in some blood sports it is not unusual for players to get their retaliation in first - and that's what seems to be happening here.

The first group of lawsuits were filed under the collective aegis of USTelecom (a group representing several telcos) while another plaint was lodged by Alamo Broadband a small ISP based in Elmendorf, Texas.

Membership of USTelecom is a roll-call of the usual suspects, all with their own competitive agendas but temporarily united in their opposition to the new FCC rules. They include AT&T, CenturyLink, Frontier Communications, Verizon Communications and Windstream.

Two days ago this collective filed a 'Protective Petition for Review' in the US Court of Appeals for the District of Columbia in which it is argued that the the new net neutrality rules are "arbitrary, capricious, and an abuse of discretion and violates federal law, including but not limited to the Constitution and Communications Act of 1934."

It adds, "USTelecom requests that this Court hold unlawful, vacate, enjoin, and set aside the Order, and that it provide such additional relief as may be appropriate.”

Blimey! No half measures or holding back there then? The only thing that remains to be thrown at the FCC is George Washington's kitchen sink. They'd better beef up the security at Mount Vernon or soon there'll be rusty Revolutionary War griddles, skillets and chafing dishes clattering down on 445, 12th St, SW.

Bolstering the notion that the industry body is getting its retaliation in early is the content of a USTelecom blog claiming that the action is a “precautionary move" taken more in sorrow than in anger.

After all, USTelecom claims that it "strongly supports open Internet rules", but cannot possibly concur with the Title II reclassification. Thus, “The focus of our legal appeal will be on the FCC's decision to reclassify broadband Internet access service as a public utility service after a decade of amazing innovation and investment under the FCC's previous light-touch approach,” said the Senior Vice President of USTelecom, Jon Banks.

His boss, Walter McCormick, the president of USTelecom, added, "We do not believe the Federal Communications Commission’s move to utility-style regulation invoking Title II authority is legally sustainable. Therefore, we are filing a petition to protect our procedural rights in challenging the recently adopted open Internet order." He adds," USTelecom is filing this protective petition for review out of an abundance of caution."

You can say that again. The new regulations aren't even on force yet - as the FCC points out. In a statement the regulator observes, "The Commission was served on Monday, March 23, with two challenges to the Open Internet Order. We believe that the petitions for review filed today are premature and subject to dismissal."

Consumer groups that had lobbied and petitioned for net neutrality to be enforced by federal regulation maintain that "Title II is the the right law" and the FCC has an unassailable case.

Matt Wood, policy director at the consumer advocacy organisation Free Press said ""These companies [under the umbrella of USTelecom] have threatened all along to sue over the FCC's decision,even though that decision is supported by millions of people and absolutely essential for our economy, but apparently some just couldn't wait to make good on their threats."

Meanwhile, in its suit, Alamo complains that the FCC's net neutrality rules "apply onerous requirements on it under Title II of the Communications Act. Alamo is thus aggrieved by the order and possesses standing to challenge it."

Word has it that other plaints will soon follow those from USTelecom and Alamo and the FCC is also facing other distracting legal challenges. On Friday last the state of Tennessee filed suit, (in Cincinnati of all places), claiming that the last month the regulator exceeded its authority when it overturned the Tennessee state legislature's decision to prohibit the provision of municipally-provided and managed Internet services.

It seems services like that are "tantamaount to socialism" and so must be stopped. The State of Tennessee petition reads, "The FCC has unlawfully inserted itself between the State of Tennessee and the State's own political subdivisions", seemingly much in the same way that Basil, Fawlty inserted a large garden gnome into rogue builder Mr. O'Reilly in the brilliant British TV comedy series Fawlty Towers.

Having done so, Basil Fawlty legged it to Canada. Could it be a precedent?

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