Petitioners on Archaic Internet Regulation: The Court Should Vacate the FCC's Order
Last week, Internet service providers and various trade associations, many of whom are members of Broadband for America, joined together to submit a joint filing with the U.S. Court of Appeals for the District of Columbia Circuit challenging the FCC's improper reclassification and overreach onto the Internet. The petitioners stated that the court should vacate the Order "due to the reliance on backward-facing public utility regulation." The court has scheduled to hear the oral arguments of the petition on December 4.
The world has quickly learned that Internet access is the gateway to more prosperous futures. A recent Pew study indicates that now 85% of all Americans regularly use the Internet. Furthermore, the Internet represents the livelihoods of millions of Americans, supporting nearly 11 million jobs. The Internet's proven capacity to change our lives is only rivaled by the impact the Internet will have in our future, unless the Federal Communications Commission succeeds in transforming the Internet into something more closely resembling a slow moving public entity.
The reclassification of Internet access as a Title II telecommunication service threatens to derail the very investment and innovation needed to keep Internet infrastructure, and the devices and applications that ride on it, dynamic and cutting edge. The FCC's reclassification replicates policies that drove investment out of the telecom sector just a decade ago. Reclassification of Internet access as a Title II telecommunications service imposes heavy-handed utility style regulations designed for railroads of the 19th century and the "Ma Bell" telephone monopoly of the 1930s and introduces a level of uncertainty into the entire Internet value chain.
USTelecom, petitioning alongside partners AT&T, NCTA, CTIA, the American Cable Association, the Wireless Internet Service Providers Association, and Centurylink, outlined four chief arguments in support of their request:
- The petitioners' brief notes that Congress never envisioned entrusting the FCC with such extraordinary authority over the internet or subjecting the internet to such intrusive regulatory oversight. To the contrary, the petitioners point out that the internet has thrived over the past two decades under the "light touch" non-title ii approach consistently applied by the FCC under democratic and republican administrations alike. That "light touch" approach, petitioners note, has been a tremendous American success story, resulting in more than $800 billion in fixed and mobile broadband investment since 2002, including by smaller providers service rural and underserved areas. The petitioners' brief argues that the FCC's reclassification of internet access misinterprets the communications act, fails to adequately justify any such changes, and failed to provide adequate notice of reclassification and other key decisions.
- Reclassifying mobile broadband as a common carrier reverses years of FCC policy holding that mobile broadband is an information service and not a commercial mobile service. CTIA and AT&T argue that this change cannot be justified by the FCC's assertions that mobile broadband's success justifies its regulation as a public utility, or that fixed broadband's reclassification compels a parallel framework for mobile.
- The order's assertion of authority over interconnection arrangements and creation of a vaguely defined Internet Conduct Standard is illegal, because the decisions are based on the improper classification of broadband as a common carrier service.
- The order adopts a vastly expanded regime of Internet regulation, parts of which were not fully vetted by the public because the commission did not follow standard notice and public comment process as required by the Administrative Procedure Act. The order is not a culmination of a thoughtful and deliberative process, but one put together in haste and influenced by politics.
Broadband for America applauds the petitioning parties on their filing and supports their endeavor in returning to an open, prosperous Internet.