WISPA Challenges Title II

Joins Chorus of Legal Critics

Add the Wireless Internet Service Providers Association (WISPA), which represents small and mid-sized fixed wireless broadband providers, to the list of associations and companies  —nine at last count, now including WISPA — who have challenged the FCC's reclassification of Internet access providers under Title II common carrier regulations.

That is in contrast to the lone eventual litigant — Verizon — that challenged the FCC's 2010 Open Internet order, which did not reclassify broadband under Title II.

As was the case with most of the lawsuits against the new rules, WISPA says that they are "arbitrary, capricious and an abuse of discretion, in excess of the FCC's statutory authority, contrary to the Constitution, and otherwise not in accordance with law."

"The FCC declared that it would forbear [not apply]... applying many provisions of Title II to broadband Internet access service, but would not forbear from applying other sections of Title II. Those provisions impose significant new regulatory requirements and unavoidable costs on WISPA members, the overwhelming majority of which have never been subject to Title II regulation of any sort," the groups said, echoing an argument made by small and midsized ISP's by the American Cable Association.

Like most appellants, WISPA filed in the D.C. Circuit, which is where the case will be heard unless there is a second lottery to choose the venue. There is a lottery if appeals are filed against the same agency order in two or more different circuits. A lottery was held on the basis of early filings by Alamo Broadband and USTelecom, and D.C. won. But those suits were filed in case the FCC's declaratory ruling on forbearance triggered the 10-day window for the circuit lottery. If that is not the case, the second round of filings, triggered by the FCC's publication of the order, could be submitted for a new lottery.