NCTA Sues FCC Over Net Neutrality Rules

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The National Cable & Telecommunications Association filed suit today (April 14) in the U.S. Court of Appeals for the D.C. Circuit against the Federal Communications Commission's Title II Internet service provider reclassification.

The NCTA has called that reclassification a disaster that will stifle investment and could lead to rate regulation through the back door of case-by-case reviews.

“This appeal is not about net neutrality but the FCC’s unnecessary action to apply outdated utility style regulation to the most innovative network in our history,” said NCTA president Michael Powell.  “The FCC went far beyond the public’s call for sound net neutrality rules.  Instead, it took the opportunity to engineer for itself a central role in regulating and directing the evolution of the Internet. We regrettably file this appeal and urge Congress to assert its role in setting national policy, by enacting legislation that fully protects the open Internet, without the harmful impact of public utility regulation.”

In a conference call with reporters, Powell said that the focus of the challenge was reclassification under Title II not the rules against blocking or prioritization. He did say NCTA was definitely taking issue with the interconnection portion or the order and with the general conduct standard.

Powell said that if the FCC had not gone the Title II route, NCTA would likely not have sued, nor would any of his members.

He also said that NCTA would have to seriously consider filing for a stay to block implementation of the rules while the court is deciding on the challenges, a legal process he said could take several years and would likely wind up in the Supreme Court.

The NCTA told the court in its filing that the FCC decision was arbitrary, capricious and an abuse of discretion. The organization argued, for one thing, that the FCC changed to a Title II reclassification approach without appropriate notice and comment to stakeholders.

Powell told reporters that the only sure way to clear up what Congress had meant was for it to weigh in, though he said NCTA was not backing a congressional Resolution of Disapproval introduced this week that would invalidate the FCC rules. "We are encouraging the bipartisan effort to come up with strong net neutrality rules without the spectre of Title II," he said. "That is the sole focus of our advocacy."

Representing the NCTA in the lawsuit are former U.S. Solicitor General Theodore Olson and former Assistant to the Solicitor General Miguel Estrada of Gibson Dunn, who has been a go-to attorney for media companies before the D.C. court.

The FCC approved the rules Feb. 26 and published them Monday, April 13, in the Federal Register, triggering a 10-day window to file suits that would be included in a lottery to choose the appeals court hearing the case -- if suits are filed in more than one court.

At press time, CTIA: The Wireless Association, the American Cable Association, USTelecom and AT&T also had filed suit Tuesday in the D.C. Court.

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.