Courts

ISPs Prep Title II Shots

Five Arguments Petitioners Will Make Against FCC Order 5/18/2015 8:00 AM Eastern
TakeAway

Stay petitions filed last week in the D.C. Circuit Court preview ISPs’ legal arguments against the FCC’s network-neutrality order.

From accusing the Federal Communications Commission of “glow-in-the dark” violations of administrative procedures to pretending pizzerias don’t make pizza, cable and telco ISPs last week took aim at the FCC’s Title II order and signaled how they will fight it in court.

 

That came in a joint stay request by, among others, the National Cable & Telecommunications Association and the American Cable Association, last week to the U.S. Court of Appeals for the D.C. Circuit.

 

To get the court to stay implementation of the rules, scheduled to go into effect June 12, the petitioners must convince the court they would suffer irreparable harm without it, that the public and third parties would not suffer if the stay is granted, and that they are likely to win the underlying case.

 

Here are five takeaways from those arguments. The lead lawyers making that case for the ISPs are former Supreme Court nominee Miguel Estrada and former Solicitor General Ted Olson.

 

“Hold the Anchovies”: In the Supreme Court’s Brand X decision, which upheld the FCC’s then classification of Internet access as an information service, the Justices had some questions about whether broadband service to the last mile offered both a telecommunications and an information service. Or, as Justice Anthony Scalia argued in his dissent, that the last-mile transmission, the “pizza delivery” portion, was separate from the ISP function, the “pizza-making” part.

 

The petitioners said any reliance by the FCC on that decision in supporting its reclassification decision is “irrelevant” because the new Title II order “reclassifies the entire broadband Internet access service, not just the last mile, as a telecommunications service.” Or to put it in pizza terms: “The FCC pretends the pizzeria offers only delivery and does not make pizza at all.”

 

About Face: They argued the FCC has, without any change in the law or signal from Congress, “arrogated” breathtaking authority over the Internet. That lays the groundwork for arguing — as ISPs have been doing outside the court since the decision — that Congress needs to clear up the question of FCC authority.

 

Double Trouble: In applying Title II to mobile broadband, they said, the order is “doubly unlawful” because mobile broadband is already “protected” from common-carrier regulations by independent provisions.

 

All the Way: By defining broadband under Title II to include the network running all the way to interconnections and edge providers, the FCC is evading the D.C. appeals court’s holding in remanding the FCC’s 2010 Open Internet order that it can’t do so without reclassifying the relationship as common carriage, which they said the FCC did not do.

 

Glow in the Dark: They argued the FCC committed “glow-in-the dark” (as in very obvious) procedural errors in the order, any one of which on its own would invalidate the order. Those include shifting, without notice, from a “handful of prophylactic rules” to Title II, rewriting rules for mobile services, redefining broadband as well as reclassifying it, and adopting the “amorphous” general conduct standard and doing so without “grappling with either its prior legal conclusions and factual findings or the billions of dollars invested in reliance on prior policy.”

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