FSN Offers Format for Net Neutrality Hearing, Says Others Seek To Minimize Its Role
Full Service Network (FSN) proposed its own format for net neutrality oral argument Dec. 4 at the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC 15-1063). In their proposal Friday, FSN and allies said they were unable…
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to reach agreement with other industry petitioners (USTelecom and allies) and government respondents (the Department of Justice and FCC), which had submitted a joint proposal for the format (see 1510230066). “The other petitioners and Respondents have an obvious common interest in minimizing the prominence and discussion of the substantive legal arguments in [our] brief,” FSN said. The joint proposal “minimizes FSN’s time,” giving it only 10 minutes, “and excludes it from discussion of a key issue,” said FSN, referring to the legality of the FCC’s reclassification of broadband access under Title II of the Communications Act (previously it was under Title I). FSN said its attorney, Earl Comstock of Eckert Seamans, should be given 20 minutes: 10 minutes, as part of the main reclassification arguments, to make its case that the statute dictated Title II for broadband and 10 minutes to argue the FCC should not have given broadband ISPs forbearance deregulation from much of Title II. “Both FSN and USTelecom argue that the plain language of the Act determines the classification, but with different end results,” FSN said (USTelecom argues the statute precluded Title II reclassification). The DOJ and FCC argue the statute is ambiguous and allows the commission to reasonably reclassify broadband under Title II. The joint proposal’s approach “would be inefficient and result in the Court having to hear the [reclassification] issue twice,” FSN said, while “hearing all three parties’ positions at the same time will facilitate the Court’s understanding.” FSN's 120-minute proposal would allocate 35 minutes to USTelecom, 20 minutes to FSN and five minutes combined to Alamo Broadband and Daniel Berninger (to raise their free-speech challenge), with the DOJ/FCC receiving 60 minutes to respond. That time breakdown “roughly” tracks the court-ordered breakdown of word limits in briefs, FSN said. Joining FSN in the litigation are Sage Telecommunications, Telscape Communications and Truconnect Mobile. One of the three judges hearing the case will decide on the format, according to the D.C. Circuit’s procedural handbook, with the composition of the panel usually revealed 30 days before oral argument (in this case, that would be Nov. 4).