Computer companies and edge providers, joined by some content creators, continued their pushback on the FCC's Restoring Internet Freedom order Thursday (Nov. 15) in a reply brief to the federal court hearing Mozilla's appeal of the order, which eliminated the rules against blocking, throttling or paid prioritization and reclassified ISPs as Title I information services.
The Computer & Communications Industry Association, along with the Entertainment Software Association, Internet Association, and the Writers Guild of America, West, filed the reply brief with the U.S. Court of Appeals. Their members include Amazon, Facebook, Google, Netflix, Microsoft, Twitter and a veritable host of others.
They had earlier filed a brief intervening in the case and arguing the FCC did not have the authority to "abdicate" the old rules.
Their view has not changed in the interim. "The Commission’s decision to eliminate all ISP conduct rules did not comply with the substantive and procedural protections of the APA and cannot stand," they told the court. That APA is the Administrative Procedures Act, which requires that agency decisions not be arbitrary or capricious.
That is the case, they say, with the Restoring Internet Freedom order, which they say disregards facts and circumstances underlying the previous policy--the 2015 Open Internet order rules--without a "reasoned explanation."
They argue the order is fatally flawed because the FCC did not explain how the Federal Trade Commission, which gets primary oversight of net neutrality under the order, can effectively prevent harm, or how antitrust law and market competition can substitute for net neutrality rules, particularly given the lack of competitive alternatives in internet access.
They also say the FCC did not provide the legal authority for its transparency rule. The Restoring Internet Freedom order required ISPs to be transparent about what they were doing, so that if they were anticompetitively blocking or throttling or prioritizing in a way that hurt consumers or was deceptive, the FTC could step in.
"Net neutrality protections create a free and open internet that helps consumers, spurs innovation, and fosters competition," said Internet Association president & CEO Michael Beckerman. "The FCC's actions harm consumers by putting more power in the hands of ISPs and make it harder for consumers to freely access and use online services. We will continue to stand up for all Americans by fighting to restore these protections in all available venues, including through bipartisan legislation in Congress."