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Cable ISPs Tackle Title II Again - Broadcasting & Cable

Cable ISPs Tackle Title II Again

Say FCC's regulatory 'bait and switch' eviscerated APA
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The National Cable & Telecommunications Association and the American Cable Association have teamed up to petition the full (en banc) U.S. Court of Appeals for the D.C. circuit to review a three-judge panel decision last month upholding the FCC's reclassification of ISPs as Title II common carriers.

There was no joy in Mudville, as it were, at the prospect of having to continue the years-long legal fight.

"We don’t celebrate this petition," NCTA blogged of the joint filing, "but we believe this action is necessary to correct unlawful action by the FCC." They argue the FCC "eviscerated" procedural safeguards under the Administrative Procedure Act (APA) and abandoned settled policy in a game of regulatory "bait and switch."

"We aren’t challenging the specific net neutrality protections," they said—which are no blocking, throttling or anticompetitive paid prioritization. "[A]s we’ve explained repeatedly, we have long supported the net neutrality principles embodied in the FCC’s 2010 order that could be enforceable under the Commission’s traditional light touch approach to internet regulation."

Cable ops signed off on that compromise set of rules under then FCC chairman Julius Genachowski. But Verizon wound up challenging them, and winning in court, which prompted the FCC, under chairman Tom Wheeler to take the Title II route, with the encouragement of President Barack Obama, HBO's John Oliver, and others.

"Regrettably, the 2015 Order abruptly and unreasonably abandoned that long-established precedent, reverting to an outdated regulatory framework," they said. "Quite simply, as regulators for decades have acknowledged and consistently determined, dynamic Internet networks do not resemble or deserve to be treated like archaic telephone systems."

The Open Internet order did forbear from applying most of the Title II rules, but that was cold comfort to ISPs.

NCTA's petition, one of several being filed Friday, the deadline for seeking en banc review, focuses on two issues: 1) What NCTA and ACA say were the FCC's failure to justify "abandoning" it prior to factual findings upon which industry had relied, and 2) what they say is its violation of the Administrative Procedures Act by not providing the requisite notice about key aspects of its decision.

Wheeler was quick to fire back as the petitions mounted.

“It comes as no surprise that the big dogs have challenged the three-judge panel’s decision," he said in a statement. "We are confident that the full court will agree with the panel’s affirmation of the FCC’s clear authority to enact its strong Open Internet rules, the reasoned decision-making upon which they are based, and the adequacy of the record from which they were developed.”

Public Knowledge, which backed the FCC and its new rules, advised ISPs to get over it.

"Twice broadband providers have looked to the DC Circuit to stop net neutrality rules. Twice they have been told that a Title II based framework is the correct way to have strong rules and the FCC is empowered by Congress to do so," said Chris Lewis, VP of government affairs. "Now these trade groups are asking the DC Circuit yet again. There is broad consensus support for strong net neutrality rules, making this just another doomed attempt for trade groups to ignore millions of Americans. It’s time for these trade groups to move on -- net neutrality is here to stay.”

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