Law firm challenges net neutrality rules, saying they're too weak

The U.S. Federal Communications Commission is facing a new, novel challenge to its recent net neutrality rules: a communications law firm is arguing the regulations aren’t strong enough.

The petition from Washington, D.C., law firm Smithwick and Belendiuk is a new wrinkle for the FCC, after a spate of lawsuits from broadband providers and trade groups challenging the rules for creating too many regulations.

The FCC’s net neutrality rules, passed Feb. 26, fall short in several ways, firm partner Arthur Belendiuk said. The shortcomings are largely related to the agency’s decision to forbear from applying traditional telecommunication regulations to broadband even though it reclassified broadband as a regulated telecom service, he said.

The FCC’s net neutrality rules include a change in classification for broadband from a lightly regulated information service to a more heavily regulated telecom service, but the agency decided not to apply traditional telecom rules like rate regulation and last-mile network sharing.

“The FCC did not go far enough in protecting the public’s absolute right to freely access the Internet,” Belendiuk said by email. “The FCC left many loopholes, which the large gatekeeper corporations can exploit.”

The net neutrality rules fail to “provide a clear directive” to broadband providers to share their last-mile connections with competitors, he said. The FCC’s failure to “open the door to competition from independent ISPs,” may be the most troubling portion of the rules, Belendiuk said.

In addition, the rules ban broadband providers from entering into paid traffic prioritization deals, but they do not ban unpaid traffic priority deals, including sponsored data plans, in which mobile broadband carriers exempt some traffic from their monthly data caps, he added.

“The FCC leaves far too much to be decided on an individual case basis,” he added. “The FCC must adopt a clear, bright line rule outlawing all forms of preferential treatment” including sponsored data plans.

The net neutrality rules also forbear from FCC truth-in-billing rules and from requiring broadband providers to contribute to the Universal Service Fund, a pool of money the FCC uses to subsidize telecom service to rural areas, he noted.

Hundreds of small telephone companies contribute to the USF, and “large broadband providers must be made to share in this obligation,” Belendiuk said. “The FCC’s decision to forbear from applying the Universal Service Fund contribution requirements to broadband providers is unsupported and unjustified.”

The law firm filed a petition for reconsideration with the FCC on Tuesday, and the FCC is generally required to act on such petitions before challenges to its rules are heard by an appeals court. Belendiuk filed the petition for the law firm, not for any clients, he said.

The deadline for organizations to file petitions for reconsideration on the FCC’s net neutrality rules is Wednesday.

An FCC spokeswoman didn’t have an immediate comment on the petition.

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