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The Internet's future will once again be determined by the courts, as the U.S. Court of Appeals for the District of Columbia Circuit will soon hear a challenge to the legality of its Open Internet Order (OIO). Broadband Internet access providers and various trade associations - many of whom are members of Broadband for America – challenged the OIO not because of their opposition to net neutrality, but because the FCC’s new rules went well beyond the sensible mission of adopting net neutrality rules. The court will hear oral arguments in December, but the written arguments have already begun. This judicial challenge could be a defining moment for the future of the Internet.

A diverse group of fifteen business associations, legal voices, economists and other experts filed amicus briefs with the Court of Appeals in support of the challengers. They argue that Title II reclassification could harm the civil rights community; will set unlawful regulatory precedent; fundamentally misunderstands Internet and network engineering; and will negatively impact on future economic activity.


Key highlights include:


  • The Multicultural Media, Telecom and Internet Council (MMTC): “From 1995 to 2014, when the FCC adopted a-‘hands off’-approach to wireless, investment, innovation and widespread deployment occurred. As a result, wireless usage is almost ubiquitous, and ‘communities of color benefitted exponentially,’ especially in the area of mobile broadband adoption. MMTC opposes any reclassification of broadband Internet access service as Title II services, whether fixed or mobile. The affordable and accessible broadband internet services offered by numerous wireless providers have helped to close the gap between the digital elite and the un-connected. As MMTC and the host of civil rights, social service and professional organizations pointed out, continued robust investment and innovation is needed for mobile broadband to improve and become a more comparable and competitive service to advanced wireline broadband services.” (MMTC, Amicus Brief, 8/6/15)
  • Internet Technologist, Richard Bennett: “It makes no more sense to classify BIAS as a simple telecommunication service than it would to classify integrated circuit design and production as a telecommunication service simply because some chips are used in telephone networks. These are two vastly different realms, and to confuse them is to commit an egregious error, not just for regulating the Internet, but also for the ability of engineers to successfully manage and design Internet operations going forward. The FCC’s record in this proceeding is replete with technically and economically sound descriptions of the Internet’s architecture and operation. These filings make it clear that BIAS is much more than simple transmission. Rather than giving these filings due weight, the Commission’s Order brushed them aside in favor of simplistic analyses offered by self-interested advocates with no technical expertise.” (Richard Bennett, Amicus Brief, 8/6/15)
  • The Georgetown Center for Business and Public Policy including thirteen economists: “[There are] three fundamental economic flaws in the Order’s decision to apply Title II regulation to the Internet. First, the Order overstates the likely benefits of its stringent regulatory regime by relying on implausible theory and speculation about anticompetitive threats from broadband access providers. Second, by failing to account appropriately for the overwhelming empirical evidence showing that long-standing light-touch regulation has, as Congress intended, encouraged unprecedented investment in broadband, the Order overstates the benefits from additional regulatory controls and under-states the corollary costs that Title II will impose. Third, the Order recklessly dismisses evidence of the very real threat to investment, innovation and output that will likely result from the imposition of Title II—substantial additional costs the agency failed to consider properly. In sum, the Order fails not only to weigh the costs of its new common carrier regime against likely de minimis benefits, but also fails to apply economic rigor to its evaluation of the record.” (John W. Mayo, Larry Downes, Ev Ehrlich, Gerald Faulhaber, Robert Litan, Jeffrey T. Macher, Michael Mandel, Bruce Owen, James E Prieger, Robert J. Shapiro, Hal J. Singer, Lawrence J. White, Glenn A Woroch, Amicus Brief, 8/6/15)
  • University of Pennsylvania Law Professor Christopher Yoo: “The Order’s attempt to reclassify Internet access service as a telecommunications service represents an impermissible interpretation that conflicts directly with the plain language of the Communications Act. In determining whether an agency’s construction of a statute is permissible, courts first ask ‘whether Congress has directly spoken to the precise question at issue.’ In undertaking this inquiry, courts apply the ‘traditional tools of statutory construction.’…If Congress has directly addressed the issue, the agency is due no deference. If the statute is ambiguous, courts defer to the agency’s interpretation so long that it is reasonable.” (Yoo, Amicus Brief, 8/6/15)
  • The Telecommunications Industry Association (TIA): “As the FCC and others often emphasize, the expansion of ever-more-capable broadband networks fuels American productivity and competitiveness, gives voice to the disenfranchised, expands health care and educational opportunity, and promotes civic engagement. Regulatory initiatives that run contrary to strong evidence of past broadband investment and that present a demonstrable risk of undermining future investment incentives are thus highly momentous, and can be made only after candid consideration of the costs they will impose. In the Order on review, the FCC failed to conduct this candid assessment. In particular, it failed to consider and respond adequately to extensive record evidence demonstrating that reclassification of broadband Internet access as a common-carriage ‘telecommunications service’ under the Communications Act would significantly diminish investment in broadband networks and thereby disserve the ends the Order purports to further.” (TIA, Amicus Brief, 8/6/15)



A new factsheet with key highlights of the amicus brief arguments can be found here. The fate of the FCC’s Order and its reclassification of broadband Internet access as a Title II telecommunications service will hinge on the arguments outlined here and others from the FCC over the coming months. 

Other blog posts about: BFA Members, Economy, FCC

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