What is it the lobbyists object to, specifically?
The complaints range from the procedural — that the FCC didn't follow the right notice-and-comment steps in writing its new regulations — to the substantive, such as the argument that the net neutrality rules impose onerous and unconstitutional restrictions on Internet providers.
Will the arguments work?
That depends a lot on which court winds up taking the case.
What do you mean?
Well, here's what happens when an appeal like this occurs. Once the regulations become fair game, anyone has 10 days to file an appeal in their preferred court (longer if that's not a priority). If multiple lawsuits get filed in different places, the court system holds a random lottery to determine where the case should be heard.
This actually has a huge potential effect on the outcome: Some courts may be more friendly to the rules than others, thereby increasing or decreasing the likelihood that they'll be struck down.
This sounds like a crazy and unpredictable system. Who said this was a good idea?
Believe it or not, it's actually an improvement over what we had before. You see, it used to be that the first court to receive an appeal would be the one to hear the case. But legal experts say that was incredibly messy, because it resulted in a race to the courthouse every time. People who wanted rules struck down would file in a court they thought was friendliest to them; defenders, knowing that a challenge was inevitable, would rush to a different court in a preemptive move to head off the worst-case scenario.
As a result, you had multimillion-dollar cases being more or less decided in a few seconds by paralegals and clerks. It was nuts.
Okay. So which court is going to take this case?
It could very well wind up being the D.C. Circuit. That's where all the major trade groups have filed their appeals. It was that Washington court that heard the last challenge to the FCC's net neutrality rule. It was that federal court that largely struck down the rules and told the FCC to try again.
This isn't set in stone. Someone else could file an appeal at another court(s) before the close of the 10-day window. Then the court system would use the lottery to select a venue at random from the options. (Update: Indeed, a small, Texas-based Internet provider has appealed in New Orleans, so the lottery will be held, after all.)
What would it mean if the case landed back at the D.C. Circuit?
From the way the trade associations are acting, it's clear they believe the D.C. Circuit is on their side. All of them filed in Washington, even when some could have chosen to file elsewhere. The court has twice before rejected the FCC's attempt to impose its net neutrality regulations.
"It had the previous two court cases," a wireless industry official said, "so based on the understanding of this complex issue, it would make sense to keep it there."
So the D.C. Circuit will probably throw out the rules again?
Not necessarily. In fact, some proponents of the FCC's rules think putting the case before the D.C. Circuit could actually benefit them this time instead of the telecom and cable industries. That's because, when the court threw out the FCC's rules, it did so on a technicality. Agreeing in principle with the FCC's rationale, the court held in Verizon v. FCC that the agency had implemented its rules using the wrong part of the law.
To get on the right side of the law, the court implied, the FCC could either rebrand Internet providers as "common carriers" regulable under more restrictive telecom regulations, or re-write the rules so that they imposed fewer obligations on the Internet providers, classified as an "information service."
The FCC wound up taking the former path — one that Andrew Schwartzman, a lecturer at Georgetown University, thinks the D.C. Circuit would recognize and uphold.
"As someone who's in favor of the net neutrality rules, I think the D.C. Circuit's a good place to be," Schwartzman said. "The Verizon decision wrote a roadmap for the FCC to follow, and I like my chances."
How can supporters and opponents of the FCC both think the D.C. Circuit would be good for them?
It's a matter of perspective. But at the end of the day, if the case is heard in Washington, one of those groups will be proven right — and the other wrong.