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ISPs, FCC Outline Oral Argument Proposal to Court

Cable and Telco ISP's joined by Alamo Broadband and VoIP pioneer Daniel Berninger, as well as the FCC they are taking aim at, have submitted their joint proposal for oral argument in their legal challenge to the FCC's new Title II-based network neutrality rules and they want plenty of time to make their argument--two hours in total.

According to a copy of the document filed with the U.S. Court of Appeals for the D.C. Circuit, they have asked for 30 minutes per side for the first part of the argument, 20 per for the second, and 10 per for the third.

The first session would deal with the legality of reclassifying broadband as a telecommunications service and related issues. That will include the USTelecom et al. (the "et al." including cable ISPs) claim that such reclassification was illegal, arbitrary and

capricious. It would also include the USTelecom et al. argument about the FCC's reliance on reclassification under Title II and whether it could be regulated as a common carrier even if it were reclassified.

They say they could also use that first 30 minutes to address the argument that the FCC did not provide sufficient notice of the pivot to Title II.

The FCC takes no position on whether Full Service Networks should get any of that first 30 minutes. FSN supported reclassification and challenged the FCC because it said the commission did not regulate broadband enough ( ISPs don't want FSN, which is filing its own proposal separately (see below), to get any of that time.

The second portion (20 minutes per side) would focus on ISP claims about the lawfulness of applying Title II to mobile broadband. It would also include whether the Internet conduct standard is unlawfully vague and whether the FCC provided sufficient notice of those portions of the order.

In each of the first two sessions, five minutes of FCC's time would go to an attorney representing the parties who intervened in support of the commission.

The third session (10 minutes per side), would go to challenges from Alamo and Berninger that the rules violate the First Amendment, and could include addressing their challenge to reliance on Sec. 706 authority. The FCC will not ceded any time to interveners for the last part.

FSN, which filed its proposal late Friday, is suggesting 35 minutes to USTelecom et. al, 20 minutes for FSN, and 5 minutes foro Alamo/Berninger, with respondents getting the same time, for 2 hours total.

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.