June 6 will mark the 71st anniversary of the day that the German Army occupying France was subjected to the largest seaborne invasion in history. On June 12, 2015, the FCC’s Open Internet Rules will take effect unless the National Cable & Telecommunications Association is able to obtain a stay of the rules.
Once the rules go into effect, every end user and edge provider will be able to file complaints at the FCC against broadband providers alleging: (1) the broadband provider’s service notification was not consistent with the FCC rules; (2) the broadband provider’s service was not consistent with its advertising; (3) the broadband provider blocked lawful content; (4) the broadband provider impaired or degraded lawful Internet traffic; (5) the broadband provider favored some traffic over other traffic; and/or (6) the broadband provider unreasonably interfered or disadvantaged end users or edge providers. Every broadband provider in the country could be subject to a deluge of complaints that could make the Normandy landing look like a tea party.
How can a broadband provider adequately prepare for this onslaught? Must it hire an army of in-house lawyers in preparation, as one industry CEO suggested at the INTX: The Internet & Television Expo in Chicago earlier this month that it may be forced to do?
The extent of possible litigation is not unlike the litigation the tobacco industry has been fighting for years. The way the tobacco industry handled their litigation onslaught was to hire law firms well practiced in the management of large-scale litigation to monitor, track, manage and defend these actions. Dedicating resources to proactively address the unique challenges presented by high claim volumes in multidistrict and multijurisdictional matters improved response times, saved money and just made sense. Broadband providers would be well served to adopt a similar strategy.
No need to staff up internally. If the onslaught occurs, the case-management firm can effectively reduce the impact on individual providers. If the onslaught does not come, the service provider has not staffed up unnecessarily.
That’s something to think about.
Mark Palchick is a communications attorney in Womble Carlyle Sandridge & Rice’s Washington, D.C., office whose clients include cable, telecommunications and Internet companies. He is a member of the Cable Pioneers.
