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FCC Defends Its Pivot on Title II

WASHINGTON — The Federal Communications Commission has made its opening case to a federal court as to why its new Open Internet order should be allowed to stand this time around.

The crux of the argument is that the agency had the incentive and ability to change its mind and reclassify broadband Internet access as a telecommunications service under Title II of the Communications Act — thus subjecting it to telco-style common-carrier rules — and that the move was a “reasonable” thing to do.

The same court threw out most of the FCC’s 2010 Open Internet order for lack of justification, but told the agency it was free to repair and restore the order if it could.

In the FCC’s opening brief to the U.S. Court of Appeals for the D.C. Circuit, agency lawyers took more than 150 pages to explain why this order should not suffer a repeat of that remand.

The brief also rebutted arguments that cable operators and other Internet service providers leveled in their opening salvo in late July.

The National Cable & Telecommunications Association and other Internet-service providers argued in their July brief that Congress had not meant for the FCC to have the “extraordinary” authority to subject the Internet to central planning-style network-neutrality rules, and that the FCC did not seek comment on its decision to “reverse field” at the urging of President Obama.

The FCC fired back that “it cannot be said that the order upends some ‘settled understanding’ that Broadband Internet Access Service would be forever free from Title II regulation.”

The FCC contends it reasonably reclassified broadband under Title II; that the classification was a reasonable application of authority to interpret a vague statute; and that it reasonably accounted for the impact of Title II on investment, reasonably determined mobile broadband should be subject to Title II and provided adequate notice of everything it was doing.

As to ISP claims that Title II is a First Amendment threat, the FCC dismissed that charge out of hand.

The NCTA has said it is not looking to overturn the bright-line rules against blocking, degrading or anti-competitive paid prioritization, but those rules could be placed in limbo should the court agree they were insufficiently justified by the Title II assertion.

Randolph May, president of the free-market think tank the Free State Foundation and a Title II critic, said he didn’t see anything unexpected in the FCC arguments. As to the FCC’s assertion that it had made plain its effort to find legal authority “to protect an open Internet,” he said: “This is not a game of hide and seek. Just because the commission keeps trying to seek out new theories, this does not mean it can ‘find’ legal authority that does not exist.”

FCC supporters have to file their briefs by Sept. 21, followed by replies from ISPs, other plaintiffs and their supporters on Oct. 5. Final briefs are due Oct. 13 and oral argument is Dec. 4.

That means no resolution of the issue until sometime in 2016, if then, as the U.S. Supreme Court could be asked to step in after the D.C. Circuit has its shot.

Keys to Victory

The fate of the FCC’s Open Internet rules rests on the case each side can make for their respective answers to the following four questions:

1. Whether the commission reasonably reclassified Broadband Internet Access Service as a Title II telecommunications service.

2. Whether the commission reasonably determined that mobile Broadband Internet Access Service is not a private mobile service.

3. Whether the FCC provided adequate notice of reclassification.

4. Whether the FCC properly recognized its jurisdiction to resolve interconnection disputes.


Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.