Can Net Neutrality Survive the Impending Onslaught of Lawsuits?

The Federal Communications Commission delivered a thrilling victory to Internet activists by approving sweeping network neutrality regulations, but critics already are plotting how to kill the rules in court. Comcast has warned that "we all face inevitable litigation and years of regulatory uncertainty." AT&T has pointed to "the uncertainty of litigation, and the very real potential of having to start over -- again -- in the future." Industry lobbying associations like CTIA-the Wireless Association, the National Cable and Telecommunications Association, and the American Cable Association also have made it clear that they are considering lawsuits.

Virtually any time groups challenge an FCC decision, they argue that it was "arbitrary and capricious" -- a legal standard that can invalidate regulations. This time will likely be no different, with net neutrality opponents expected to claim that FCC didn't have enough evidence of any real problem that would justify the new regulations. The most controversial argument that Internet providers are likely to make is that the regulations violate their First Amendment right to free speech. Just like newspapers have the right to edit the content that appears on their pages, Internet providers should be able to control the traffic that flows over their networks, they argue. Net neutrality advocates argue that the rules protect speech rather than restrict it. The Internet providers aren't actually speaking, but are instead transmitting the speech of others, the advocates say. The claim that Internet providers have free speech rights "clearly just doesn't match with how users view the Internet," said Barbara van Schewick, a Stanford University law professor.