ISPs Pound FCC in ‘Title’ Fight

Cable and telco ISPs have ripped into the FCC in their opening brief to a federal court challenging the FCC’s Title II-based network neutrality order, an attack that could leave new net 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. It has even said that cable ops are OK with Congress legislating those bright-line rules, so long as it excludes Title II from the equation—Hill talks are ongoing said an aide to one top Democratic Senator involved.

But as network neutrality fans had warned, that support for the underlying rules appeared a distinction with little difference when it comes to the status of those rules given that NCTA, the American Cable Association and other ISPs took aim at the order and said it must be set aside, which would leave the brightline rules unenforceable, just as the FCC’s 2010 rules were mooted by a decision out of the same court until the FCC’s new rules went into effect June 12.

NCTA et al laid into the commission for the “know it when we see it approach” to potential net neutrality violations 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, but said getting the “just and reasonable” oversight authority of the Internet was why it became important to pivot toward Title II for new net rules. He said that 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.”

But not knowing where the FCC will go next is what really worried cable operators, and is why they argue 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 argue that they could be penalized for infractions the FCC has never identified.

ISPs had a host of issues with the new rules, from how they were arrived at—the influence of the Obama Administration—to how much notice the public got to comment on the pivot to Title II.

But one of the key issues for those ISPs was the regulatory grey 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 argue.

The ISPs borrowed from the FCC’s court smack-down over “unconstitutionally vague” indecency regs, saying the Internet Conduct Standard has to 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 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 build-outs the FCC is so focused on promoting.

The conduct standard says ISPs can’t “unreasonably interfere with or unreasonably disadvantage” access to Internet content.

But it will be up to the FCC’s enforcement bureau and three commissioners to interpret what those terms mean.

Such terms, cable and telcos tell 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 beginning 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.


Cable and telco ISPs fired a broadside against the FCC’s new Title II-based net neutrality order in opening briefs at the end of July. But a real broadside, making similar points, had already been fired.

That came in the form of “Against the Obamanet” by Brian C. Anderson, published by Encounter Books.

The pamphlet, formatted to look like a tract from yesteryear, is just one in a series of Encounter Broadsides think pieces with titles including “How Medicaid Fails the Poor,” “The Cure for Obamacare” and “The Truth About Gun Control.”

Encounter’s Broadsides division says its pamphlets “make the case for ordered liberty and the institutions of Democratic capitalism at a time when they are under siege from the resurgence of collectivist sentiment.” It is likely “collectivists” doesn’t refer to folks mounting butterflies or stamps.

Anderson, editor of conservative think tank The Manhattan Institute’s City Journal, echoes—or more like foreshadows since review copies were sent out in mid-July—ISPs labeling of the Title II as a power grab and expanding on it in the broadside spirit with rhetorical flourishes like “Internet serfdom” and painting the FCC as a swollen bureaucracy that has protected monopolies, impeded innovation and curbed speech.

He also takes the concerns of FCC Commissioner Ajit Pai about new net rules straying into content—under the amorphous general conduct standard, perhaps—and uses that to raise the specter of The Fairness Doctrine, which is often at the head of the parade of horribles.

John Eggerton

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.