WASHINGTON — Cable and telco Internet-service providers have ripped into the Federal Communications Commission in their opening brief to a federal court challenging the agency’s Title IIbased network-neutrality order, an attack that could leave new Internet neutrality rules in limbo once again if the court agrees.
The National Cable & Telecommunications Association continues to say it isn’t opposed to the FCC’s bright-line rules against blocking, throttling and paid prioritization of Internet content. It has even said cable providers are OK with Congress legislating those bright-line rules, as long as it excludes justifying them under Title II of the Communications Act from the equation. Talks on Capitol Hill are ongoing, said an aide to one top Democratic senator involved.
But, as network-neutrality supporters had warned, that support for the underlying rules appeared a distinction with little difference when it comes to their status, given that the NCTA, the American Cable Association and other ISP backers took aim at the order in the U.S. Court of Appeals for the D.C. Circuit and said it must be set aside. That would leave the bright-line rules unenforceable, just as the FCC’s 2010 rules were mooted by a decision by the same court until the regulator’s new rules went into effect June 12.
The NCTA et. al. laid into the commission for the “knowit- when-we-see-it approach” to potential net-neutrality violations, as embodied by the vague general Internet conduct standard.
Even FCC chairman Tom Wheeler conceded in the post net-neutrality vote press conference, finger quoting the word “unreasonable,” that he “didn’t know” just what that would entail. He said getting the “just and reasonable” oversight authority of the Internet was why it became important to pivot toward Title II for new Internet rules. He said the bright-line rules were pretty easy to define — no blocking, or throttling or paid prioritization — but that “we don’t know where things go next.”
Not knowing where the FCC will go next is what really worried cable operators, and that’s why they have argued that the rules don’t provide the regulatory certainty that the chairman has advertised.
Wheeler has said the FCC will be the referee ready to throw the flag. But cable operators and telcos have argued that they could be penalized for infractions the FCC has never identified.
ISPs had a host of issues with the new rules, including how they were arrived at, the Obama administration’s influence and how much notice the public got to comment on the pivot to Title II.
A key issue for those ISPs was the regulatory gray areas they said the FCC had created, and the difficulty in knowing how they might be filled.
That is the uncertainty that could discourage investment and innovation, they argued.
The ISPs borrowed from the FCC’s court smack-down over “unconstitutionally vague” indecency regulations, saying the Internet conduct standard must be jettisoned because “it “fails to provide a person of ordinary intelligence fair notice of what is prohibited” and “is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Those are quotes taken directly from the U.S. Supreme Court’s 2012 rejection of the FCC’s indecency enforcement policy.
Ultimately it is not the devil ISPs know, but the ones the FCC may conjure up, that could frighten away investment and slow the broadband buildouts the regulator has been so focused on promoting.
The conduct standard says ISPs can’t “unreasonably interfere with or unreasonably disadvantage” access to Internet content. It will be up to the FCC’s enforcement bureau and three commissioners to interpret what those terms mean.
Such terms, MSOs and telcos told the court, provide “no principle for determining” when they have passed from the “safe harbor of the permitted” to the “forbidden sea of the prohibited.“
ISPs will be making their case against Title II on Dec. 4 after the court last week set that as the date for oral argument. The court has yet to decide how much time each side will have for that argument and which judges will hear the challenge.
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