Part of Wheeler's aversion to full Title II reclassification appears to be the nearly inevitable lawsuit, although most observers believe a hybrid approach would also lead to lawsuits from broadband providers. Verizon Communications, which filed a lawsuit challenging the FCC's 2010 net neutrality rules, has in recent months called on the FCC to adopt rules based on Section 706 of the Telecommunications Act, a section giving the agency authority to encourage broadband rollout.
The U.S. Court of Appeals for the District Columbia Circuit, while throwing out part of the 2010 rules early this year, pointed to Section 706 as a possible foundation for new rules, but also noted Title II as an option.
Full reclassification of broadband to Title II would leave broadband providers with "no choice but to fight the sudden reversal of two decades of settled law," Randal Milch, Verizon's general counsel for public policy, wrote in a November blog post. "By departing from the judicially sanctioned Section 706 approach, the FCC will have increased both the likelihood -- and the likelihood of success -- of any legal challenge."
But a hybrid approach "also fairly guarantees litigation," Milch added.
On the other side, if the FCC passes net neutrality rules seen as too weak, "the public interest organizations would likely sue," Cathy Sloan, vice president of government relations at the Computer and Communications Industry Association, a tech trade group in favor of strong net neutrality rules.
So the FCC may be in for a legal fight either way, even after FCC attempts to enforce net neutrality rules were challenged in court twice in recent years. "After all this work, we may go around a third time," Sloan said.
Wendy agreed that a lawsuit is likely whatever the FCC does. "The only way to stop that would be for Congress to step in and pass something before the '16 elections, which, in my mind, seems unlikely," he said. "There are just too many plates in the air and issues to be settled for something comprehensive to come about."
If the FCC reclassifies broadband as a regulated utility, Congress will likely attempt to push back, however. With Republicans now in control of both the House and the Senate, opponents of new regulations will likely push to head off FCC action in the new year. Republicans could also push to pass a resolution of disapproval if the FCC reclassifies broadband early in 2015.
Obama, however, would almost certainly veto any congressional action to negate strong net neutrality rules.
Some Republican lawmakers are also considering compromise legislation that would allow the FCC to prohibit broadband providers from selectively blocking or slowing Web traffic or offering paid prioritization arrangement. The so-called Title X legislation, pushed by some broadband providers, would also prohibit the FCC from reclassifying broadband and exposing it to common carrier rules such as universal service and price regulation.
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