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Title II Fans Back FCC to Court

WASHINGTON — Friends of the Federal Communications Commission were lining up last week to tell the U.S. Court of Appeals for the D.C. Circuit how right the agency was to reclassify high-speed Internet access as a common-carrier service and how wrong cable operators and others were to oppose the move. (Editor's note. This story initially identified the venue as the Supreme Court. We regret the error).

At stake is how much power the FCC has over Internet-service providers’ business plans in the name of protecting Internet openness and access, and what impact its use of that power will have on the private-sector investment needed to power the ever-expanding broadband engine of economic growth, social interaction and virtually everything else.

Here is a look at some of the arguments from intervenors (parties to the ISPs court challenge of the FCC’s Title IIbased open Internet rules) and amici (supporters of the FCC’s position) in briefs filed with the U.S. Court of Appeals for the D.C. Circuit.

Motley Crew: Edge content providers Netflix, Vimeo, Etsy and tumblr teamed with transit provider Level 3 Communications; satellite-TV provider Dish Network; publicinterest groups Free Press and Public Knowledge; and a host of other public-interest groups, consumer advocates, state regulatory commissioners, transit providers and competitive telecom carriers on an intervenor brief to the court.

The FCC for the first time subjected interconnection agreements to its net-neutrality oversight, and they want to make sure that part of the FCC Open Internet order — one of the specific elements ISPs are challenging — does not get thrown out by the court.

“No one wants to be greeted with the frustrating revolving ‘buffer’ circle on her screen when she tries to access the content provider she chooses, just because that provider has not paid, or cannot pay, for preferred access into and through the ISP’s pipes,” the groups told the court.

The groups said the question is not whether the FCC has the authority to classify broadband under Title II of the Communications Act — they said that is settled law — but whether it was reasonable for the FCC to have used that authority to do so. They suggest that is a slam dunk, because the FCC followed a “detailed road map for action laid out by the Supreme Court (in the Brand X case, upholding a past FCC decision to classify Internet access as an information service) and the D.C. Circuit (which remanded the old rules back for better justification of its prohibitions on certain conduct, which the FCC majority has said Title II reclassification provides).

View From the Hill: Led by veteran Title II proponent Sen. Ed Markey (D-Mass.) and Rep. Anna Eshoo (D-Calif.), a group of 29 Hill Democrats and independents — including presidential candidate Sen. Bernie Sanders of Vermont — signed on to an amicus brief to argue that the 1996 Telecommunications Act gave the FCC the authority to do what it did, which they argue was simply to “classify broadband Internet access service according to its best understanding of the technology of the day, and how consumers use that technology.”

They said the fact that a previous FCC had classified broadband as an information service was no reason the current one could not shift gears and call it a telecom service.

But even if the court found that the Telecom Act language they suggested gave the FCC that authority to be ambiguous, they said, the court should still defer to the regulator’s expertise.

“Reclassifying broadband under Title II was a major victor for consumers, free expression and for our economy,” Markey said, taking aim at the “Big Broadband Barons” who “insisted on interfering with what we do online” and would find themselves on “the wrong side of history.”

The ‘People’s Brief:’ Fordham Law School associate professor and network-neutrality activist Zephyr Teachout spearheaded a “people’s brief” last week — teaming with Sascha Meinrath, formerly of Free Press — in an amicus brief in support of the FCC’s Title II reclassification of broadband.

On a call with reporters, Teachout said that 40,000 Title II backers agreed to sign on to the brief in just a few days after she put the draft online, at She was checking at press time, but believed that was a record number of signatures on a Circuit Court brief.

“The Internet has become the beating heart of activism,” Teachout and Meinrath said, prompting “a great, glorious labyrinth of voices” to weigh in.

A check of the website found that the brief was backed by the major net-neutrality groups who lobbied the FCC hardest for Title II, including Demand Progress, Fight for the Future, Daily Kos and RootsAction.

They got that group to weigh in using some scare tactics, saying that without net neutrality, the “big cable companies” make it tougher for them to access information “that disagrees with their political leanings.”

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.