The dissenting opinions of the two Republicans ran 80 pages, and they telegraph some of the arguments on which critics could rely as they prepare legal filings to scrap the new rules.
FCC Chairman Tom Wheeler has repeatedly said the commission wrote the rules to withstand challenges from the “big dogs.” And while it is still unclear which organization or company will lead the charge, there is little doubt that a legal battle is brewing.
On Thursday, the public got its first look at the actual text of the net neutrality order, two weeks after it was approved. The rules would reclassify broadband Internet access as a telecommunications service under Title II of the Communication Act. The new designation will give the commission increased authority to enforce rules barring Internet service providers like Verizon or Comcast from prioritizing any piece of Internet traffic above another.
Here are four legal arguments already being lobbed against the new rules.
Not enough notice
The GOP commissioners argue that the public was not given enough notice about the plan to reclassify the Internet and other provisions that made their way into the order. The lack of notice, they argue, is a violation of the Administrative Procedure Act (APA).
The FCC released draft rules last year that relied on alternate authority to enforce net neutrality. Critics have accused FCC Chairman Tom Wheeler of changing course midstream after President Obama made a high-profile public pitch for reclassification.
“Rather than following the proper procedure and issuing a further notice, the FCC charged ahead at the behest of activists who were suspicious of the Commission’s commitment to their cause and thus demanded that agency adopt rules without delay,” GOP commissioner Ajit Pai wrote. “That is not what the Administrative Procedure Act demands nor what the American people deserve.”
The proposed rules last May did include a series of questions asking about reclassification. That, combined with the huge amount of public comment in favor of reclassification, gives Chairman Tom Wheeler and other senior FCC officials confidence that they complied with the law.