CTIA Indicates It Will Sue Over Net Neutrality Order
A CTIA official said the group will likely challenge the FCC net neutrality order, joining a number of other industry officials who also suggested they’re prepared to go to court. “Since it appears the FCC will proceed down the Title II path and fail to adopt mobile-specific rules, the wireless industry will have no choice but to look at the courts and Congress for a remedy,” said Scott Bergmann, CTIA vice president-regulatory affairs, in a Friday statement to us.
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NCTA President Michael Powell said in an interview set to have been broadcast this weekend on C-SPAN's The Communicators that it’s “highly likely” the group will sue. AT&T CEO Randall Stephenson said in a CNBC interview Friday he “suspects the industry, all of us in the industry, will ask for a stay” from the courts. NCTA had said it was possible it would sue. USTelecom is also likely to join any challenge, a person familiar with the group’s thinking told us Friday.
Chairman Tom Wheeler had said he expects the “big dogs” to challenge reclassification in court (see 1411210040). The agency, in describing the draft net neutrality order headed for a Feb. 26 commission vote, expressed confidence last week it will be upheld in court (see 1502050052), and declined to comment Friday.
Meanwhile, lobbyists on both sides of the Title II debate continued to push for changes in the draft order, said ex parte filings posted Friday. NCTA, narrowing its focus, told Commissioners Mignon Clyburn and Jessica Rosenworcel that the agency could forbear on only the portion of Communications Act Section 201 that requires “just and reasonable rates,” while leaving the rest of the section intact. Comptel, the Computer & Communications Industry Association and others pushing for the agency to deal with interconnection disputes prodded for clear statement in the order saying actions by broadband providers that threaten an open Internet would be considered unjust and unreasonable and subject to agency action.
Powell said cable has made investments based on being regulated by a “light touch” approach, on C-SPAN. The order would be “too dramatic and too serious of a change not to ask the court to review the propriety of what [the agency] did,” he said. The group’s board hasn’t made a decision, he said, but he’s “confident there are going to be really serious arguments about what [the agency has] done.” The net neutrality issue, he said, has grown from protecting customers’ right to access the Internet and become “much more broadly about regulating the Internet.”
Stephenson, on CNBC’s Squawk Box televised Friday, said “there will be litigation. It’s quite certain that there will be litigation.” The draft order is “a surprising move,” he said, also saying the debate has shifted from protecting an open Internet to “regulating the Internet end to end.”
NCTA and Comcast had been urging the agency to forbear from Section 201, which requires “just and reasonable rates.” Powell and other NCTA officials told Rosenworcel Tuesday and Clyburn Wednesday that because Section 10(a) allows the commission to forbear from “any portion” of the act,” the agency could “forbear from oversight of the justness and reasonableness of ‘charges,’ even if it elects to retain authority to require just and reasonable ‘practices,’ ‘classifications,’ and ‘regulations’ by carriers.”
But forbearing from the reasonableness of rates could jeopardize the agency’s ability to prohibit paid prioritization, Public Knowledge Senior Vice President Harold Feld emailed, because of a lack “of case law defining the difference between an unreasonable rate v. an unreasonable practice.” Free Press Policy Director Matt Wood emailed that “considering that the Commission hasn't adopted new retail rate regulations for any service in decades, and that it's announced its intention to forbear from ratemaking authorities ... it's hard to understand the basis for NCTA's rate regulation panic.”
On interconnection, the order should say “it would be unjust and unreasonable for broadband Internet access service providers to engage in practices … that have the purpose or effect of circumventing or undermining the effectiveness or goals of open Internet rules,” several proponents of interconnection regulation told Clyburn and aides Tuesday, said an ex parte filing. Representatives of the Ad Hoc Telecommunications Users Committee Cogent, CCIA, Comptel, Free Press, the Internet Freedom Business Alliance, Level 3, Netflix and New America Foundation’s Open Technology Institute were at the meeting.
Under the draft order, the agency would handle cases about interconnection, including those brought through complaints, on a case-by-case basis, said an agency fact sheet on the draft. The draft’s “bright line” bans on paid prioritization, blocking and throttling apply only to the last mile, an agency official told us. The separate interconnection cases would be judged under Title II’s “just and reasonable standard,” the official told us Friday.
The FCC can't reclassify broadband service based on creating “an imaginary service purportedly offered by Internet service providers to potentially every endpoint on the Internet,” Bob Quinn, AT&T senior vice president, and other company officials told aides to Commissioners Mike O’Rielly and Ajit Pai Wednesday, said an ex parte filing posted Friday in docket 14-28.