ISP Backers Pile on Arguments

Tell Court Where To Put FCC’s New Net-Neutrality Order
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WASHINGTON — When the smoke had cleared from all of the rhetorical shots fired at the Federal Communications Commission’s new Title II-based Open Internet rules at the U.S. Court of Appeals for the District of Columbia, more than a dozen friends of Internet-service providers had challenged the agency’s order, which took effect June 12.

At stake is how the FCC can regulate broadband networks, including wireless, as the technology moves into every nook and cranny of economic and social life.

Here is a court-watcher’s guide — the decision will affect the future of the Internet — to the supporting arguments against the FCC’s move to classify Internet access as a common-carrier service subject to increased agency oversight. The FCC said it needed to reclassify Internet access to backstop its new rules against such a court challenge, which undid its previous attempt in 2010 to prevent online blocking and degrading.

Harold Furchtgott-Roth is a free-market advocate who served as a Republican FCC commissioner from 1997 to 2001. Like current FCC commissioner Michael O’Rielly, who voted against the new rules, Furchtgott-Roth was also a Republican staffer who worked on the 1986 Telecommunications Act.

Writing for the Washington Legal Foundation, he warned the court against allowing the FCC to exert too much power in the name of protecting the Internet.

“The FCC’s proper role is not to promote what it considers to be good policy, but to write, enforce, and adjudicate rules that faithfully implement laws entrusted to the agency,” Furtchgott-Roth wrote. “A contrary view would not only permit regulatory agencies to essentially rewrite federal law, but it would leave their administrative powers unchecked.”

Christopher Yoo (not to be confused with Tim Wu, who coined the phrase “net neutrality”) has been a goto academic for network-neutrality opponents. He has debated Wu, written papers and appeared on numerous panels.

Yoo, a University of Pennsylvania law professor (who is also a professor of both computer science and communications), said the FCC’s definition of Internet access as a telecommunications service, rather than an information service, does not square with how the Internet actually works on an engineering level.

“An examination of the underlying technology and the reasoning of the Supreme Court’s decision in Brand X [which upheld the FCC’s classification of ISPs as an information service not subject to mandatory access requirements] both underscore that for Internet transmissions that use the Domain Name System (DNS) or caching, end users do not specify the endpoints of the communication. As such, Internet-access services that rely on DNS and caching are not properly classified as telecommunications services,” he argued.

■ The FCC for the first time is applying its rules to mobile broadband. Big mistake, said Mobile Future, a coalition of companies interested in the mobile space.

The record showed that mobile networks “are fundamentally different from fixed networks in critical ways that demand far more flexible, complex and aggressive network management,” Mobile Future said.

The FCC’s reasonable network management exemption does not provide enough flexibility and, besides, the mobile industry spent billions based on the FCC’s recognition of that difference, and to do an about-face now is unwarranted and indefensible, Mobile Future said.

■ The National Association of Manufacturers teamed with the U.S. Chamber of Commerce to say the FCC’s move would indeed hurt businesses and investment — an ISP argument that did not wash with its chairman, Tom Wheeler — and was unnecessary because providers were already battling to deliver higher speeds.

“[W]hen Google announced plans to bring gigabit speeds to consumers, AT&T matched it for the same price," the NAM and the Chamber told the court. “Comcast responded by offering 2-Gigabit speeds. Time Warner [Cable] countered by tripling its speeds without raising prices. The Gigabit Internet thus is poised to enjoy the robust competition that consumers have come to expect in broadband.”

■ The Phoenix Center for Advanced Legal & Economic Public Policy Studies roughed up the FCC’s effort to raise new rules from the ashes of the court-remanded 2010 order.

“By lumping together the distinct services provided to edge providers on the one side and end users on the other, the commission has conspicuously ignored the Court’s conclusion in Verizon that broadband providers furnish a service to edge providers,” the think tank wrote.

“[W]anting to side-step the legal consequences of applying Title II to the second side of the market, the commission held that it ‘need not reach the regulatory classification of the service that this Court in Verizon identified as being furnished to the edge’ and chose instead to lump both the retail and second side of the market into a single service.”

The think tank said the FCC “cannot have its cake and eat it too.”

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