ISPs sound ready to sue over FCC’s “third way”

FCC Chairman Julius Genachowski doesn't see why net neutrality needs to be contentious. His new "third way" approach to the issue, announced yesterday, was meant to be a big tent that could bring in both ISPs and Internet companies like Google, think tanks, and consumer groups. It would be "light touch," merely returning us to the "consensus" that has existed for years about regulating Internet access.

"I call on all stakeholders to work with us productively," he said again today in a YouTube video released by the Commission.

Genachowski makes his pitch

Don't break out the unicorns, rainbows, and ice cream cones just yet, though. "This proposal is disappointing and deeply concerns us," said the two Republicans on the Commission yesterday. "It is neither a light-touch approach nor a third way."

That "big tent" is already swaying dangerously in the breeze. While groups like Free Press and New America predictably supported the plan, the real test was always going to be with the ISPs. And they don't like it. At all.

Comcast and Time Warner Cable were the most conciliatory, pledging to work with the Commission even if they didn't approve of the plan. Other ISPs decided that implicit threats of legal action were a better route. And the wireless industry still insists that it's so different, the rules shouldn't apply.

Time Warner Cable: "We remain concerned about the view that there is something unique about last-mile broadband access providers that requires different regulation from other Internet participants."

CTIA - The Wireless Association: "While we are disappointed with the Title II net neutrality announcement today, CTIA will continue to work to educate policymakers, including the FCC, on why net neutrality rules should not apply to wireless."

Verizon: "We believe that the chairman’s stated approach is legally unsupported."

Comcast: "While we are disappointed with the inclination not to lean in favor of Title I regulation, we are prepared to work constructively with the Commission to determine whether there is a 'third way' approach that allows the Commission to take limited but effective measures to preserve an open Internet and implement critical features of the National Broadband Plan, but does not cast the kind of regulatory cloud that would chill investment and innovation by ISPs."

AT&T: "We believe this is without legal basis. Make no mistake—when it regulates the networks that comprise the Internet, the FCC is in fact, and for the first time, regulating the Internet itself... We feel confident that if the FCC proceeds down this path, the federal courts will ultimately reach the same conclusion."

NCTA (the biggest cable lobby): “Nothing has occurred either in the marketplace or in broadband technology to change the fact that our broadband services are ‘information services,’ and not ‘telecommunications services’ that are regulated under a model designed for a previous era and for very different services."

Some of this may be bluster, an attempt to secure a more favorable deal when the rules are finalized. But the AT&T and Verizon comments about legality strongly suggest that someone will file suit over the issue, tying the Open Internet proceeding up in court for a couple of years.