FCC Defends its Ability to Enforce Net Neutrality in Federal Court

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On Friday, the appeals court for the Washington D.C. circuit heard arguments from the United States Telecom Association which would like to see the FCC’s landmark net neutrality order issued in February reversed.

In February, the FCC officially reclassified internet services as telecommunications under Title II of the Communications Act, meaning that ISPs could be regulated in a similar fashion as to telephone service providers. This caused a handful of telecoms and ISPs to pursue legal action.

Central to the telecom industry’s argument is that the FCC has no authority to reclassify fixed and mobile broadband as common carrier services.

The court isn’t expected to provide a ruling until the spring, but many commentators, including Harold Feld of interest group Public Knowledge have said that USTelecom getting its way would be a long-shot.

“The FCC looks very likely to win on the big question of statutory authority,” Feld wrote in a blog post, referencing the precedents set 10 years ago in a court case involving cable companies attempting to refuse to share their networks with a small California ISP called Brand X.

“None of the judges, even Judge Williams (the most conservative judge), seemed sympathetic to USTA’s effort to distinguish this case from Brand X,” he wrote. “This is important because Brand X says that the definition of ‘Telecommunications’ is ambiguous and the FCC therefore has discretion as to whether to define broadband as Title II telecommunications service or a Title I information service. By contrast, none of the panel pressed the FCC on why they thought it was ambiguous.”

USTelecom President Walter McCormick contended, however, that the reclassification as a Title II common carrier “is inconsistent with the clear language of the statute and the commission’s own longstanding precedent.”

He continued, “By inserting itself deeply into the management of the Internet, the commission has improperly sought to expand its jurisdiction beyond the authority delegated to it by the Congress. This regulatory overreach – which will slow innovation, chill investment, and increase cost on consumers – is completely unnecessary, given the fact that broadband providers are operating in conformance with the open Internet standards advanced by the president, support their adoption in regulation under the FCC’s Section 706 authority, and their enactment into law by the United States Congress.”

The Open Technology Institute was among the organizations and technology companies defending the FCC against the lawsuit to support equal network neutrality protections. Sarah J. Morris, OTI’s senior policy counsel, said in a statement, “By following the roadmap provided by the Supreme Court’s 2005 ‘Brand X’ case and the D.C. Circuit’s 2014 ‘Verizon’ case, the FCC crafted its Order on the strongest legal foundation…We remain confident in the strength of the rules and are encouraged by the Court’s responsiveness to the legal arguments made by the FCC and its intervenors.”

For the complete arguments in the circuit court, the hearing is available in MP3 format: Part 1, Part 2.

Even if the D.C. circuit court rules in favor of the FCC, it’s wouldn’t be surprising if the telecom industry’s appeal goes to the Supreme Court.

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