In court papers, some of the nation’s most powerful broadband stakeholders excoriated the FCC’s decision to reclassify mobile and fixed broadband Internet as a telecommunications service under Title II of the Communications Act.

July 31, 2015

4 Min Read
CTIA, NCTA, USTelecom Blast FCC Internet Rules in Appeal

By Josh Long

Josh LongThe cable television, telecommunications and wireless industries on Thursday condemned the Federal Communications Commission’s Internet regulations, calling on a federal appeals court to overturn various decisions in a Net neutrality proceeding that garnered unprecedented public interest.

In court papers filed with the U.S. Court of Appeals in Washington, D.C., some of the nation’s most powerful communications trade associations and companies blasted the FCC’s decision to reclassify mobile and fixed broadband Internet as a telecommunications service under Title II of the Communications Act.

“Under the guise of ensuring that the Internet remains ‘open,’ the Order upends the decades-old status quo by subjecting … broadband Internet access service to heavy-handed, public-utility-style regulation designed for the 19th-century railroads and 1930s telephone monopolies,” AT&T, CenturyLink and others declared in a 94-page legal brief. “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.”

The joint brief also was filed by the American Cable Association, Wireless Internet Service Providers Association (WISPA), CTIA-The Wireless Association, National Cable & Telecommunications Association, and the United States Telecom Association (USTelecom).

The FCC has made a radical departure from previous administrations by reversing the agency’s prior treatment of broadband as an information service that is exempt from Title II regulation, argued the litigants. The FCC also has overturned its prior decision that mobile broadband is exempt from Title II and not interconnected with the telephone network, the brief pointed out.

The FCC’s reclassification decision is not the only source of dispute in the litigation. Other points of contention include whether the FCC legally applied Title II regulation to Internet interconnection agreements, whether the agency’s Internet Conduct Standard is lawful, and whether the FCC gave sufficient notice of its rules.

“Individually and collectively, these rules will undermine future investment by large and small broadband providers, to the detriment of consumers,” the communications companies and associations warned.

The FCC voted in February to adopt Net neutrality regulations that prohibit blocking, slowing down or so-called throttling of Internet content, and paid prioritization of Web traffic. The regulations took effect last month.

The broadband industry is generally not opposed to the latter regulations. However, critics of the more comprehensive Open Internet Order contend the Title II reclassification decision will unduly burden …

… a broadband industry that has invested hundreds of billions of dollars under a mostly hands-off regulatory regime.

The FCC’s “strained reading” of federal law contradicts previous court decisions, including a 2014 ruling that examined the agency’s former Internet regulations, according to the joint legal brief.

The agency also was accused of violating the federal Administrative Procedure Act, abandoning “prior factual findings and policy without any reasoned explanation and without identifying any new facts that could support its about-face.”

In testimony earlier this week on Capitol Hill, FCC Chairman Tom Wheeler expressed confidence that the Internet regulations would be affirmed. He also denied claims that the regulations would stymie investment.

“The CEOs of Sprint, T-Mobile, Cablevision, Charter, and Frontier have all publically said Title II regulation does not discourage their investment,” he said. “Recent transactions, both announced and rumored, point to the same conclusion.”

FCC commissioners are divided on the Internet regulations along party lines. The three Democrats voted for the order, while the two Republicans opposed it. In a dissenting statement, FCC commissioner Michael O’Rielly said the Commission had sought to “usurp the authority of Congress by rewriting the Communications Act to suit its own ‘values’ and political ends.”

Matt Wood, policy director of Free Press, a nonpartisan organization that advocated for strong Net neutrality protections, said the broadband industry’s arguments aren’t novel ones.

“The FCC’s latest Net neutrality ruling is built on a solid legal foundation,” he said in a statement. “It ensures that the Internet remains a network open to all comers, fosters a diversity of perspectives, and stays free of interference and censorship. That’s why millions of people called on Washington to keep Net Neutrality the principal rule of the open Internet.”

The appeal is before the U.S. Court of Appeals for the District of Columbia Circuit. That is the same court that mostly overturned previous FCC Internet regulations following a challenge by Verizon.

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