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Editorial: Legal Eagles

Cable operators last week prepared to take aim at the FCC’s Title II reclassification of Internet access. And they are not kidding around.

Washington super-lawyers Ted Olson, solicitor general under George W. Bush, and Miguel Estrada, former assistant to the solicitor general, will lead NCTA’s arguments in the D.C. appeals court.

The FCC majority said that Title II reclassification was necessary to legally sustain rules necessary to prevent Internet service providers from using their opportunity and incentive as Internet “gatekeepers” to block, throttle and otherwise prioritize Internet content.

Cable operators say they won’t do any of those things, and they even support rules explicitly barring them. But that won’t fly under a Title II regime that includes a vague general-conduct standard through which activists could push for rate regulation and companies like Cogent and Netflix could push for more advantageous peering arrangements.

Olson and Estrada say the FCC has done a 180-degree shift on Internet classification without justification and without sufficiently signaling to the public or industry they were doing so, in violation of congressional intent and administrative procedures requirements.

The problem with a legal challenge, whether or not the cable and telco ISPs are right, is that it dooms it to an all-too-typical FCC dance by tying up the issue for years. Best case, the court decides by early 2016. But even then, either side could take it to the Supreme Court. Certainly if cable ops lose, they are likely to seek high-court review.

A better result, which NCTA freely admits and supports, would be for Congress to weigh in. (Sadly for the communications bar, this would mean far less money from legal fees.) Republicans have offered a bill that would prevent blocking, throttling and paid prioritization, even though they don’t agree Congress needs to be legislating stepping in.

The FCC ‘s job is to interpret statute. Congress could clear that up by passing a bill along the above lines. We know, that is a tall order, but (see next editorial) it’s not impossible.