Legacy incumbent telephone and cable companies have threated to sue the U.S. Federal Communications Commission if as expected the FCC follows President Barack Obama’s call to classify Internet services as a common carrier utility under Title II of the Communications Act. The incumbents hope the specter of prolonged litigation and uncertainty will give the FCC pause before it acts next month.
The problem for the incumbents however is even if they make good on the threat,
it may not buy them the degree of uncertainty and delay they would like. Any
litigation arising from the expected regulatory action by the FCC would likely
be disposed of in relatively short order. The courts operate under a doctrine
of judicial deference to how regulators interpret and apply statutory law such
as the Communications Act. They are loath to put themselves in the place of
regulators and second guess administrative rulemaking, reasoning the regulators
and not the courts hold the requisite expertise when it comes to figuring out
how to apply the finer points of statutory law.
Possibly realizing this, the incumbents’ lobbying corps is implementing a backup
strategy in Congress to amend the Communications Act to carve
out Internet service on the grounds that it doesn’t function as a market monopoly
– the underlying rationale for classifying it as a common carrier utility like
telephone service. Demerits of that legislative rationale aside, that nascent effort
also isn’t likely to be productive since even if passed it would face a likely presidential
The outlook for 2015 is common carrier utility regulation of the Internet is
coming and isn’t likely to be derailed.