Markey, Eshoo Lead Court Support for Title II

Sen. Ed Markey (D-Mass.) and Rep. Anna Eshoo (D-Calif.) led a group of 27 Democratic and independent legislators, including presidential hopeful Bernie Sanders, in filing an amicus brief in support of the FCC's Title II reclassification.

Monday is the deadline for briefs supporting the FCC in the legal challenge by ISPs and others to the new Title II based Open Internet rules which went into effect June 12.

"In the view of a significant number of Members of Congress who have been active in telecommunications policymaking and are responsible for overseeing the actions of the FCC," they told the U.S. Court of Appeals for the D.C. Circuit, "the FCC’s classification of broadband Internet access service as a 'telecommunications service' is supported by the plain language of the 1996 Act." They added, "It was Congress’s intent moreover, to preserve the FCC’s authority to forestall threats to competition and  innovation in basic communications services, even as the technologies used to offer those services evolved over time."

They also said that if the court concludes the congressional language in the 1996 Act has "some ambiguity," the FCC should be given "substantial discretion" to interpret that language, and change its mind from a previous decision that Internet access was an information service and not telecommunications service subject to Title II. "Whatever the FCC’s view of the matter may have been in the past, it is clear in 2015 that broadband Internet access is a 'telecommunications service' and that the FCC’s decision to classify it as such is reasonable."

On a conference call with reporters Monday, Markey said the "big broadband barons" were on the wrong side of history for challenging the FCC's title II rules.

Markey said that he and Eshoo had worked together to construct an argument that they think reflects the real history of the issue, which he said was that the FCC had done precisely what Congress intened it to do, classify broadband as it best understands the technology of the day and how consumers use it.

Also on the call were a variety of groups planning to file amicus or intervenor briefs in support of Title II (intervenors are actual parties to the case, amicus are supporters of the FCC position). Those included Mozilla, Etsy, Kickstarter, Free Press, Center For Media Justice, common Cause, and many others.

Markey praised those groups as digital Paul Revere's who helped bring about Title II.

Eshoo was not able to make the conference all--technical difficulties--but issues a statement.

“Today we join together in support of a common cause: to ensure consumers and businesses are protected against actions that threaten free speech, harm competition or diminish the continued openness of the Internet," she said. “In a battle that has pitted large broadband providers against millions of consumers and small businesses, our brief reflects our strong support for the FCC’s legally sound net neutrality rules and our continued commitment to the free and open Internet.”

Senators signing on to the brief were Tammy Baldwin (D-Wisc.), Al Franken (D-Minn.), Angus S. King, Jr. (I-Maine), Richard Blumenthal (D-Conn.), Bernie Sanders (I-Vt.), Ron Wyden (D-Ore.), Cory A. Booker (D-N.J.), Barbara Boxer (D-Calif.).

House members were Nancy Pelosi (D-Calif.), John Conyers, Jr. (D-Mich.), Mike Doyle (D-Pa.), Keith Ellison (D-Minn.), Sam Farr (D-Calif.), Raúl M. Grijalva (D-Ariz.), Michael M. Honda (D-Calif.), Jared Huffman (D-Calif.), Barbara Lee (D-Calif.), John Lewis (D-Ga.), Zoe Lofgren (D-Calif.), Betty McCollum (D-Minn.), Eleanor Holmes Norton (D-D.C.), Chellie Pingree (D-Maine), Jared Polis (D-Colo.), Jan Schakowsky (D-Ill.), José E. Serrano (D-N.Y.), Mark Takano (D-Calif.), Nydia M. Velázquez (D-N.Y.).

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.