Telcos, Cable Argue FCC Precluded From Title II Broadband Reclassification
USTelecom and others argued the FCC was precluded from reclassifying broadband as a Title II telecom service (under the Communications Act) by the 1996 Telecom Act, in a reply brief to the U.S. Court for Appeals for the D.C. Circuit.…
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The D.C. Circuit is reviewing their petition challenging the agency net neutrality order (USTelecom v. FCC, No. 15-1063). "At its core, the Order rests on the claim that Internet access is no different from voice telephone service and that the FCC therefore has authority to subject them both to Title II’s common-carriage requirements," said USTelecom, joined by the American Cable Association, AT&T, CenturyLink, CTIA, NCTA and the Wireless Internet Service Providers Association. "But Internet access, unlike voice telephony, necessarily 'offers' a 'comprehensive capability for manipulating information' -- namely, data stored on distant computers -- which is a classic information service exempt from common carriage under a long-settled regulatory regime," they said. "In 1996, Congress codified that regulatory regime and thereby precluded the FCC from regulating such services under Title II," their brief said, adding: "The FCC defends its upheaval of the regime with little more than a plea for deference, based on an aggressive misreading of Brand X," the Supreme Court's ruling deferring to the FCC's previous finding that cable broadband/modem service is a Title I information service. "But Brand X involved classification of a transmission link to Internet access functions, whereas the Order reclassifies Internet access service itself, which everyone in Brand X agreed is an information service. And, to avoid reclassifying many other Internet players as common carriers, the FCC has done something else the statute forbids: it classifies the same computer-processing and storage functions in opposite ways -- as 'telecommunications services' or 'information services' -- depending solely on whether they are provided by petitioners or third parties," the brief said.