THERE WASN'T ENOUGH EVIDENCE
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 problem is the disconnect between the evidence that they claim to support their actions and the actual evidence on the record," said Geoffrey Manne, the executive director of the International Center for Law and Economics and a critic of the FCC's decision.
Invoking the broad Title II powers wasn't justified, Manne said, and neither was the FCC's decision to ban Internet providers from offering "fast lanes" for sites that pay more. "All of the economic literature makes very clear that paid prioritization can be beneficial to consumers," he said.
The Free State Foundation's May argued that President Obama's call for the FCC to invoke Title II could be especially problematic. The courts are more likely to view the rules as a political calculation than the careful decision of an expert agency, he argued.
"I wouldn't suggest [that Obama's intervention] was in of itself unlawful," May explained. "But it may mean that a court would be more likely to scrutinize the FCC's decision and give it less deference."
Net neutrality advocates argue that the FCC relied on extensive economic analysis in shaping its 2010 rules and considered even more data for the new regulations. Industry groups, economists, and experts on all sides of the issues weighed in, helping the FCC craft its decision for how best to protect an open Internet. The agency relied on a lot more than just Obama's statement.
"I thought we had a really good record in 2010, and the record now is even stronger," van Schewick said.
THE RULES VIOLATE FREE SPEECH
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.
That constitutional argument has the potential to overturn not only the net neutrality rules, but a whole range of communications regulations. Advocates fear that the attack could virtually cripple the FCC.
In its lawsuit over the 2010 regulations, Verizon made the First Amendment argument, but the court never actually addressed the issue.
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," van Schewick said.
Manne argued that the regulations "pose a very serious risk" to free speech, but that the First Amendment isn't likely to be the main argument for the opponents.
"It's the last line of defense," he explained. "I'm so confident these other issues are going to be problematic, we're very unlikely to see any of the reviewing courts make a final determination on the First Amendment issues."