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ISPs: Title II Is FCC 'Net Power Grab

Major cable and phone ISPS say the FCC's Open Internet order justification, far from being the expert agency interpretation of statute the FCC asserts, is an "unlawful attempt to assert broad public-utility regulatory authority over the Internet, from the end user all the way to a broadband provider’s connection to an edge provider."

They made that argument in filing their latest salvo in the battle against the FCC's Title II reclassification of Internet access service as a common carrier in the FCC's effort to better justify network neutrality rules.

That came in a joint reply brief from USTelecom, the National Cable & Telecommunications Association, the American Cable Association, CTIA: The Wireless Association, AT&T, CenturyLink and WISPA (Wireless Internet Service Providers Association). They say the FCC overturned years of decisions that companies relied on to make business decisions, abandoned 20 years worth of interpretations that provided ISPs additional immunity from common carrier regs, ignored the court in reclassifying ISPs under Title II, and did not provide the proper notice for changes like applying Title II to interconnections or adding a broad Internet Conduct Standard.

"This is not the exercise of 'expertise.' To the contrary, the fact that the FCC has suddenly discovered that so many longstanding statutory interpretations and prior orders, adopted on independent rationales over several decades, are now simultaneously 'incorrect' precludes any deference and exposes the FCC’s about face for what it is--an effort to enact by regulatory fiat a Title II 'for the 21st Century that Congress expressly foreclosed," the commenters said, according to a copy of the document, which was filed Monday afternoon (Oct. 5).

There is a policy, established in the Supreme Court Chevron case of appeals courts giving federal agencies deference for their subject matter expertise, a deference the commenters say is definitely not due the FCC in this case.

The ISPs argue that the FCC's reclassification is based on the bogus argument that Internet access is the same as voice service and the FCC can apply the same Title II common carriage regs to both.

Not so, they claim. "Internet access, unlike voice telephony, necessarily “offers” a “comprehensive capability for manipulating information”— namely, data stored on distant computers — which is a classic information service exempt from common carriage under a long-settled regulatory regime."

Since the briefs are in response to the FCC's defense to the court (the U.S Court of Appeals for the D.C. Circuit), the commenters argue that that FCC defense amounts to a plea for deference to its "aggressive misreading" of the relevant case law or, as the commenters suggest, not-as-relevant-as-the FCC-thinks case law. "Brand X [the Supreme court decision upholding the FCC decision over a decade ago that Internet access was an information service not subject to mandatory access] involved classification of a transmission link to Internet access functions, whereas the Order reclassifies Internet access service itself, which everyone in Brand X agreed is an information service."

The commenters also say the FCC is trying to have it both ways, basing its classification on whether "the same computer-processing and storage functions" are provided by a petitioner or third party as a way to avoid reclassifying other Internet players under common carrier regs.

"[T]he FCC has done something else the statute forbids: it classifies the same computer-processing and storage functions in opposite ways — as “telecommunications services” or “information services” — depending solely on whether they are provided by petitioners or third parties," they told the court.

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.