Lawmakers, Advocates Back FCC Net Neutrality Order, Confident of Victory
A group of U.S. lawmakers and other net neutrality advocates defended the FCC’s open Internet and broadband reclassification order, in briefs filed Monday with the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063). “The FCC has done precisely what Congress intended the Commission to do -- classify broadband Internet access service according to its best understanding of the technology of the day, and how consumers use that technology,” said Sen. Ed Markey, D-Mass., Rep. Anna Eshoo, D-Calif., and 27 other members of Congress in their brief. “In light of the FCC’s findings -- findings which are amply supported by evidence -- this Court should uphold the FCC’s reasonable reclassification order.” The eight other senators and 19 other House members included House Minority Leader Nancy Pelosi, D.-Calif., and 24 other Democrats, plus two independents: Sens. Bernie Sanders of Vermont and Angus King Jr. of Maine.
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On a press call, Markey and other net neutrality supporters voiced confidence the FCC would be upheld by the courts. “The battle for net neutrality is truly a 21st century revolution,” said Markey, who called open Internet advocates the “21st century Paul Reveres” who “took to the streets and took to the Net.” The commission made Feb. 26 “Internet Freedom Day,” in effect, by adopting its order, which put in place “strong net neutrality rules” and “made clear the Internet is open for business,” he said. “Reclassifying broadband under Title II [of the Communications Act] was a victory for consumers, free expression, and our economy.” He said that “big broadband barons” had predictably sued the FCC to preserve their rights to “interfere” with the free flow of Internet traffic, but he said he was “confident” the commission will prevail and net neutrality advocates “will be on the winning side of history.”
Eshoo noted that millions of Americans had weighed in at the FCC, with the “vast majority favoring strong, bright-line rules, that prevent broadband providers from engaging in blocking, throttling and paid prioritization.” Eshoo, who was supposed to be on the call but wasn’t able to dial in from a remote location, also said in an emailed statement: “Today we join together in support of a common cause: to ensure consumers and businesses are protected against actions that threaten free speech, harm competition or diminish the continued openness of the Internet. … In a battle that has pitted large broadband providers against millions of consumers and small businesses, our brief reflects our strong support for the FCC’s legally sound net neutrality rules and our continued commitment to the free and open Internet.”
John Bergmayer, Public Knowledge senior staff attorney, said industry petitioners challenging the FCC order were trying to litigate policy disputes they lost at the FCC and in Congress. “They have no new legal arguments,” he said on the press call. The petitioner arguments are contradicted by the D.C. Circuit in its 2014 Verizon ruling, the Supreme Court in its 2005 Brand X ruling, and even by some of their own statements from the past, Bergmayer said. The FCC is on firmer legal ground by basing its authority primarily on Title II, “and I’m confident that the briefs are going to help the court reach the same conclusion,” he added.
Matt Wood, Free Press policy director, said the FCC had “finally gotten it right this time” after suffering court setbacks previously by basing its broadband authority on Title I of the Communications Act and Section 706 of the Telecom Act. "We’re confident it will stand up in court this time because the agency chose the correct legal path -- it’s about that simple," he said.
Michael Cheah, Vimeo general counsel, said net neutrality was a critical issue for his company and the broader Internet community. He said the FCC order was not about trying to regulate Internet content. “It’s about trying to ensure a level playing field” for gaining access to the Internet, he said.
In addition to the lawmaker brief, other parties filing briefs in support of the FCC broadband regulation as of Monday afternoon included intervenors Cogent Communications and many others (here), along with various amici parties: the ACLU and Electronic Frontier Foundation (here), American Library Association and other library groups (here), Consumers Union (here), Internet Association (here), Open Internet Civil Rights Coalition (here), Writers Guild of America, West, Inc., Future of Music Coalition and National Alliance for Media Arts and Culture (here), and Tim Wu, a professor of law at Columbia University (here). AT&T and other intervenors defended the FCC order against Full Service Network's challenge that the agency granted too much forbearance relief from broadband regulation (here). Other amicus briefs supporting the FCC order's regulation were due Monday, the court’s deadline.