FCC Will Head To Court To Defend Net Neutrality… Again

For the third time in five years the Federal Communications Commission will fight for its net neutrality rules in the courtroom. This time around, the FCC will have to defend not only its implementation powers, but also how it classifies Internet service providers under the open-Internet rules that took effect in June. In December, the broadband provider trade group USTelecom will present oral arguments against the agency in federal court, marking the third time the FCC has faced a net neutrality court case since the first iteration of the internet regulations were introduced in 2004. Working under Title II gives the FCC “much stronger jurisdictional grounding” according to Doug Brake, a telecommunications policy analyst with the Information Technology and Innovation Foundation, a Washington-based think tank that focuses on how policy affects technology innovation. But opponents of net neutrality say the FCC unilaterally switched their classification in an attempt to claim oversight authority.

“While ‘Net Neutrality’ as a policy matter may be appropriate, in at least some form, it is such a major question that we feel it should be adopted, if at all, by Congress and the President -- not an independent regulatory agency,” said Tom Struble, a legal fellow at TechFreedom, a think tank that filed an intervenor brief to help USTelecom in its case against the FCC. The plaintiffs are likely to argue that “this is a quintessential information service, it is not a telecommunications service and that the FCC hasn’t done the factual work to show that it is a telecommunications service,” Brake said. Anne Veigle, chief spokesperson for USTelecom, comprised mainly of small- to mid-sized broadband providers, said that “the point about information service vs. telecom service is part of the suit’s broader contention that classification of broadband Internet access service under Title II rules violates existing law and decades of FCC regulatory policy.” Brake also noted that the FCC “previously argued in front of the Supreme Court that it is an information service and so they need to point to changes that justify their prior factual findings.”