FCC Calls Title II Pivot Reasonable

Says industry had fair warning, commission has clear authority

Related: NAB Asks FCC to Rethink Repack

The FCC has made its opening case to a federal court for why its new Open Internet order should be allowed to stand this time around, and the crux of the argument is that the commission had the incentive and the right to change its mind and reclassify broadband under Title II and that it was a “reasonable” thing to do.

The same court threw out most of the FCC’s 2010 Open Internet order for lack of justification, but remanded it back to the agency saying it could repair and restore the order if possible.

In its opening brief to the U.S. Court of Appeals for the D.C. Circuit filed last week, FCC lawyers took over 150 pages to explain why there should be no repeat of that remand for this order and to take aim at arguments leveled by cable operators and other Internet Service Providers in their opening salvo in late July.

In that July brief, the National Cable & Telecommunications Association and other ISPs argued that Congress had not meant for the FCC to have the “extraordinary” authority to subject the net to central planning-style rules and that the commission did not seek comment on its decision to “reverse field” at the urging of President Obama.

The FCC fired back in its return brief that, “It cannot be said that the Order upends some ‘settled understanding’ that Broadband Internet Access Service would be forever free from Title II regulation.”

The FCC told the court that it reasonably reclassified broadband under Title II, that that was a reasonable application of its authority to interpret vague statute, reasonably accounted for the impact of Title II on investment, reasonably determined mobile broadband should be subject to Title II and provided adequate notice of everything it was doing.

As to Title II being a First Amendment threat, the FCC dismissed that ISP charge out of hand.