USTelecom Provides Additional Clarity on Its Argument in Court Against Net Neutrality Rules
USTelecom laid out in some detail its arguments on why the U.S. Court of Appeals for the D.C. Circuit should overturn the FCC’s February net neutrality order. The pleading was made as part of USTelecom’s initial March 23 appeal of the order (see 1503230066). The FCC “reversed decades of precedent” in the order, the group said. Industry officials on both sides of net neutrality said the big question at this point is whether the court will stay the order, a decision that could come at any time. In one other development, Full Service Network, TruConnect Mobile, Sage and Telscape sought review of the order Thursday in the U.S. Court of Appeals for the 3rd Circuit in Philadelphia.
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USTelecom presented four questions for decision to the court, starting with whether subjecting broadband to common carrier regulation “violates the terms of the Communications Act of 1934, as amended, and the First and Fifth Amendments to the U.S. Constitution; or is based on an unreasonable interpretation of the statute, is arbitrary and capricious, or is otherwise contrary to law.”
USTelecom raises the same questions about the terms under which ISPs interconnect with other IP networks. USTelecom also asks the court to consider “whether the specific rules the FCC adopted, including but not limited to its Internet conduct standard, exceed the agency’s authority, are arbitrary and capricious, or otherwise contrary to law” and whether the FCC “violated the notice and comment provisions of the Administrative Procedure Act.”
Free Press Policy Director Matt Wood questioned the USTelecom arguments. “For wireline carriers like USTelecom's members, the [Communications Act] Title I classification for broadband only cropped up in 2005 -- not even a full decade ago,” Wood said. “For more than a thousand rural carriers who chose to keep offering Internet access as a telecom service after that 2005 order came out, DSL has been and remains a Title II service today.”
The USTelecom statement of issues “makes clear that they intend to challenge not merely the Title II classification, but the net neutrality rules as well,” Public Knowledge Senior Vice President Harold Feld said. “So much for their public statements that they totally love net neutrality and only oppose Title II classification. We should recognize these lawsuits for what they are -- efforts by the largest carriers to declare unlawful even the most basic network neutrality protections.” If USTelecom prevails on its First Amendment arguments it would eliminate not just net neutrality “but the fundamental rules governing the phone network,” Feld said.
In a blog post Thursday, Free State Foundation President Randolph May questioned whether the deference courts give to regulatory agencies to change course as part of the Chevron doctrine will save the net neutrality order. “It is true that an agency is entitled to change its mind, reversing previous decisions, as long as it engages in reasoned decision-making,” May said. “In the Commission’s Open Internet order, the agency essentially rests its argument on the assertion that today, ‘broadband Internet access is fundamentally understood by customers as a transmission platform through which consumers can access third-party content, applications, and services of their choosing.’ But the Commission fails to back up this argument regarding consumer understanding in any meaningful way.”
Thousands of comments in the record urge the FCC to reclassify ISPs, May said. “But this is much different than an assertion that relates in any way to the integrated nature (or not) of the present offerings,” he said.