Parties Defend FCC Net Neutrality Order, Attack Petitioner Arguments

The intervenors didn’t cede petitioners an inch, arguing that the first sentence of their brief “is replete with inaccuracies: ‘In the Order, the FCC claims for itself unprecedented authority to regulate the Internet -- authority that Congress expressly withheld and that the FCC for decades had rightly disclaimed.’ The FCC has not claimed authority to regulate the Internet. And what authority the agency has claimed is not withheld, unprecedented, or previously disclaimed.”

The intervenors said the Supreme Court’s Brand X decision recognized that Congress gave the commission discretion to classify broadband Internet access service (BIAS) as a Title II telecom service. The petitioners said that ruling only concerned “the last mile,” but “that last mile goes unmentioned in Brand X,” countered the intervenors, which accused petitioners of “taxonomy … for the expediency of winning here.” The FCC acted reasonably in following a “detailed roadmap charted by the Supreme Court” and the D.C. Circuit’s 2014 Verizon ruling, which upheld various commission findings, the intervenors said. “The Verizon court had remanded the previous open Internet rules on a single ground: they looked too much like common carrier rules, and the FCC had not classified ISPs as common carriers,” they said. “The FCC has now done so, curing that sole defect.” The commission reasonably found that BIAS “is separable from any [Title I] information service that ISPs make available,” they added.

The intervenors dismissed procedural claims the FCC failed to provide adequate notice. “The FCC was so successful in publicizing” possible fixed and mobile broadband reclassification that it attracted almost 4 million comments, including many from petitioners, becoming “fodder for cartoons and talk shows [and] leaving a claim of ignorance open perhaps to hermits, but not to petitioners,” they said. The intervenors also dismissed First Amendment objections as lacking standing and merit (see 1509220052">1509220052 for more on speech arguments). Among others signing the brief were Akamai, Comptel, Dish Network, Etsy, Free Press, Kickstarter, Level 3, NARUC, Netflix, New America’s Open Technology Institute, Public Knowledge, Tumblr, Vimeo and Vonage.

The Internet Association said the “open and free Internet fuels” an "innovation-without-permission ecosystem” in which only consumers “decide the winners and losers.” Democratic discourse and numerous IA members benefited from that openness, including Airbnb, Amazon, eBay, Facebook, Etsy, Netflix, Twitter, Uber, Yahoo and YouTube/Google, said IA. The “necessary” FCC order ensured that openness by “correctly” applying its rules to mobile and wireline broadband and establishing interconnection oversight. Consumers Union said Title II reclassification and forbearance from applying most telecom rules to broadband was “an appropriate and carefully measured use of its statutory authority.

Engine Advocacy and tech companies said that without reclassification, ISPs could “block, discriminate, and offer preferences to some edge providers over others, distorting competition, raising the cost of innovation, and paving the way for a fractured Internet” with artificial entry barriers. Granting petitioners relief “would introduce prohibitive transaction costs and impossible outlays into the entrepreneurial process,” they said.

The Computer & Communications Industry Association and Mozilla said ISPs had “increasingly sophisticated filtering and blocking technology” and “increased incentives to discriminate against competing over-the-top services such as streaming video content from Netflix, Amazon and others.” CCIA and Mozilla said the order “was a logical and well-informed” decision, “and certainly reasonable” under the Chevron standard for court deference to agencies. “Far from ‘upending the decades-long status quo,’ the FCC simply affirmed that services that offer ‘pure transmission’ to the public for a fee are telecommunications services,” they said.

New York state official Timothy Wu alleged “serious misrepresentation” by petitioners asserting the Telecom Act expressly intended broadband Internet service to be a Title I information service. Wu said petitioners’ premise that the FCC upended a “long-settled regulatory understanding” was “both incorrect and gives a misleading impression of historic practice."

The Open Internet Civil Rights Coalition called Internet openness a “boon to historically underserved communities.” The open Internet has reduced business startup costs and helped people access crowdfunding capital and retail platforms, said the coalition, which includes Common Cause, Media Action Grassroots Network and the National Hispanic Media Coalition. Mobile broadband is particularly important to people of color, low-income consumers, and rural Americans, the groups said. There is “broad consensus among civil rights groups about the importance of Open Internet rules,” they said. Only the Multicultural Media, Telecom and Internet Council (MMTC) supported petitioners, and it didn’t object to the rules but to the FCC’s broadband reclassification. “However, no party before this Court, including MMTC, has attempted to show that the rules MMTC supported could be adopted without employing Title II powers,” the coalition said.

The American Library Association and other library groups said the rules, particularly paid prioritization restrictions, were needed to protect their “mission and values” and the rights of their patrons to access online content. The general conduct rule helped ensure the Internet remains a “democratic platform for research, learning and the sharing of information,” they said.

A group of administrative law professors voiced concern petitioners seek “to impose onerous new obligations on agencies that engage in notice-and-comment rulemaking” under the Administrative Procedure Act. “Petitioners would require agencies to include in notices of proposed rulemaking detailed legal justifications for their changes in statutory interpretation,” they said, arguing such a requirement “has no basis in the APA” and is inconsistent with Supreme Court precedent.

USTelecom and others defended the FCC Title II forbearance decision against a challenge from Full Service Network, which they said lacked standing. FSN urged the court to sustain broadband reclassification on a different legal basis, violating Article III of the Constitution and is contrary to Supreme Court precedent, the separate intervenors said. “FSN’s contention that the very limited forbearance that the Order granted was too much is, again, contrary to settled, directly on-point precedent,” they said: “If, however, the Court were to vacate the FCC’s forbearance decisions, it would also have to vacate the FCC’s inextricably intertwined” reclassification decision. “Otherwise, the Court would be imposing a result -- the full application of Title II” to BIAS “that the agency never sought comment on and expressly rejected because it would have devastating consequences for investment and innovation,” said USTelecom and allies.