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By Lydia Beyoud
July 31 — The FCC's net neutrality rules are a “a sweeping bureaucratic power grab” over the Internet of Things and all connected devices, a group of Internet service providers and trade groups warned in a court filing July 30 that laid out an expansive legal argument against the rules.
That argument was among many being made by the Federal Communications Commission's antagonists, who attacked its net neutrality order on multiple fronts in several briefs filed at the U.S. Court of Appeals for the District of Columbia Circuit. They barraged the court with an array of arguments in their bid to scuttle the agency's reclassification of broadband services under the common carrier provisions of the Communications Act of 1934.
The agency's order “represents an unprecedented transfer of regulatory power to the FCC, without a clear warrant from Congress,” petitioners AT&T Inc., CenturyLink, the American Cable Association, CTIA—The Wireless Association, the National Cable and Telecommunications Association, the U.S. Telecom Association and the Wireless Internet Service Providers Association argued in their brief.
“The Order makes no effort to justify this vast expansion of authority over the ‘Internet of Things,' which sweeps in not just communications among the public, but also machine-to-machine communications” and would govern a massive swath of the U.S. economy, that group of petitioners argued.
The group, along with other petitioners in the case, made several arguments with which they hope to persuade the appeals court to strike down all or some of the controversial rules the FCC adopted in February .
Among their arguments, the petitioners said the commission violated the Administrative Procedure Act on several counts; that it impermissibly redefined terms previously applied to telephone-only networks; and that it identified no changes to the technology or functionality of mobile broadband that would justify its reclassification.
In a separate brief, petitioners Alamo Broadband Inc., a small Texas-based ISP and Daniel Berninger, a tech entrepreneur, argued that the Open Internet order violated broadband providers' First Amendment rights.
“Broadband providers are speakers because they engage in speech, and they exercise the same editorial discretion as cable television operators in deciding which speech to transmit,” the filing said.
Therefore, the FCC's rules should be subject to strict scrutiny “because they compel providers to carry all speech, including political speech with which providers disagree, and because the rules discriminate among speakers on the Internet,” Alamo and Berninger argued.
Their brief also said the D.C. Circuit's decision in Verizon v. FCC to defer to the FCC's interpretation of Section 706 of the Communications Act as a source of regulatory authority “conflicts with more recent Supreme Court precedent”— namely Yates v. United States. That case, which restricted state commissions to using preexisting authority to regulate, should also apply to the FCC, Alamo and Berninger said.
A third brief filed by a group of four small ISPs — Full Service Network, LP, Sage Telecommunications, LLC, Telscape Communications, Inc. and TruConnect Mobile — also said the Verizon court made errors of fact and law, and that the points raised in that case shouldn't be applied to the court's review of the Open Internet order.
AT&T and its fellow petitioners also blasted the FCC's forward-looking general Internet Conduct Standard in their brief, calling it “unlawfully vague.”
The FCC implemented the general future conduct standard to apply to questionable practices that don't specifically fall under the bright line rules in the Open Internet order against throttling, blocking or paid prioritization. The standard is aimed at prohibiting ISPs from unreasonably interfering with or disadvantaging consumers' ability to select, access or use lawful content, applications services or devices, the FCC has said. But its critics disagree.
“The Internet Conduct Standard must be invalidated because it ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited' and ‘is so standardless that it authorizes or encourages seriously discriminatory enforcement,'” the petitioners said in the brief.
The ISPs argued that the terms “unreasonably,” “interfere” and “disadvantage” are terms of degree that don't provide regulated entities principles for determining whether they are within or beyond a safe harbor.
The terms don't have a settled usage or tradition of legal interpretation in the context of broadband services, the petitioners said. “Telephone-era precedent applying the term ‘reasonable' will be of little value in determining whether broadband network management practices ‘unreasonably interfere with or unreasonably disadvantage' consumer access to Internet content,” they said.
The companies are particularly worried about FCC enforcement actions, in light of a series of record-breaking Enforcement Bureau proposed fines against telecom companies over the past year.
Without further definition of terms, the FCC's general conduct standard could allow the agency to arbitrarily take enforcement actions, they said.
Otherwise, “providers can only guess” as to whether their offerings—such as zero-rated data for certain music or video applications—would be permitted under the rules, they said.
A joint opening brief of other FCC opponents in the case is due Aug. 6. The FCC's opening brief in the case is due Sept. 14.
To contact the reporter on this story: Lydia Beyoud in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Heather Rothman at email@example.com
Text of the USTelecom brief is at http://www.bloomberglaw.com/public/document/United_States_Telecom_Assoc_v_FCC_et_al_Docket_No_1501063_DC_Cir_/8.
Text of the Alamo Broadband brief is at http://www.bloomberglaw.com/public/document/United_States_Telecom_Assoc_v_FCC_et_al_Docket_No_1501063_DC_Cir_/6.
Text of the Full Service Network brief is at http://www.bloomberglaw.com/public/document/United_States_Telecom_Assoc_v_FCC_et_al_Docket_No_1501063_DC_Cir_/7.
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