ISPs: FCC's Title II-based Order Is Illegal Power Grab

Open legal fight against reclassification
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Cable and telco ISPs have filed their opening salvo in the legal battle against the FCC's reclassification of their service under Title II common carrier rules, including interconnection agreements, and the commission's creation of a general Internet conduct standard under which to review their conduct on a case-by-case basis, or what the FCC calls an "opportunity to make up the rules as it goes along." They are also fighting the application of the net neutrality rules to mobile wireless broadband for the first time.

They say the FCC can't reclassify broadband as a common carrier.

In the brief, the ISPs take direct aim at Title II, saying the FCC net neutrality order "distorts the Communications Act’s text and disregards the regulatory regime the statute codified" and calling it "unlawful, arbitrary, and the product of improper procedures" that "must be vacated."

Under the guise of ensuring that the Internet remains “open,” the Order upends the decades-old status quo by subjecting the service that offers consumers the capability to access and use the Internet —broadband Internet access service — to heavy-handed, public-utility-style regulation designed for 19th-century rail roads and 1930s telephone monopolies."

Thursday was the deadline for their opening brief to the U.S. Court of Appeals for the D.C. Circuit, which is hearing the consolidated appeals to the June 12 launch of the new rules.

Actually, the ISPs are not challenging the three bright-line rules against blocking, degrading and paid prioritization, and have supported congressional efforts to establish those rules without having to resort to common carrier regs.

But they want the order vacated, which would likely have the practical effect of putting those bright-line rules in limbo.

And on the issue of Congress' intent for FCC Internet regulation, the ISPs told the court that "Congress never envisioned entrusting the FCC with the extraordinary authority that the Order  purports to exercise or subjecting the Internet to intrusive, central-planner-style oversight."

They say the FCC did not put out "countless" details for public comment after reversing field and taking a Drastically different approach" from its new rule proposal after President Obama called for Title II reclassification.

"The Order is not the culmination of a thought ful and deliberate process. It is the output of an agency determined (or pressured) to reach a particular result," They argued.

The National Cable & Telecommunication Association, CTIA, and USTelecom were among those filing the joint brief.

In a statement, the National Cable & Telecommunications Association reiterated that its legal strategy was not aimed at the rules, but at Title II.

"With the FCC’s Title II order now before the Court, it’s important to restate something we have already said repeatedly – we are not appealing the FCC action because of net neutrality. In fact, we have been vocal in our support of the FCC crafting reasonable net neutrality protections for consumers. Unfortunately, the FCC went well beyond that sensible mission and chose to impose an outdated, far-reaching and punitive regulatory model on today’s dynamic Internet. With Title II opening the door for rate regulation, higher taxes and fees and the ability for government the set the terms and conditions of business relationships, we had no choice but to appeal."

“America’s global mobile leadership is at risk under the FCC’s heavy-handed net neutrality rules on wireless broadband," said CTIA President Meredith Attwell Baker. "There is no question: wireless is different. Due to the technical realities of wireless networks, providers must be able to manage usage so that all consumers have the highest quality experience.

By all accounts, under light-touch regulation the U.S. wireless industry created jobs, boosted our economy and provided numerous benefits for Americans. We should maintain this approach that has been supported on a bipartisan basis for decades. We must make sure we remain the envy of the world by encouraging continued investment, innovation and competition in our mobile platform.”

“USTelecom supports the open Internet standards, our member companies operate in conformance with them, and we believe that they should be enacted into law by the United States Congress," said USTelecom president Walter McCormick. "However, the FCC’s reclassification of broadband Internet access to be a Title II common carrier service involves extraordinary regulatory overreach, and a broad assertion of jurisdiction that inserts the commission deep into the management and operation of the Internet, violates two decades of established law and FCC precedent, and is contrary to the express provisions of statute. As our brief shows, the commission’s approach is both unlawful and unwise, abandoning a long-successful policy that has produced hundreds of billions of dollars in broadband infrastructure investment. While we are challenging the FCC’s action in court and believe we will be successful, we will continue to work toward positive enactment of the open Internet standards in Congress consistent with our long-standing support for an open Internet.”

“Today’s legal filings contain more of the same flimsy legal arguments broadband providers have been putting forth for more than a decade," said Free Press policy director Matt Wood. "As we always have, Free Press will continue to expose such spurious and unsubstantiated claims, defend the rights of Internet users and uphold the FCC’s decision at last to ground open Internet protections in established and essential law."

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