Legal Arguments Take Shape Against Title II

[Commentary] Through a sleepy August, the Title II imbroglio continues, extending along two main fronts: glimmers of a legislative solution possibly gaining traction when Congress returns, and the DC Circuit Court marching through its briefing schedule. On the latter, initial industry briefs are now in, along with those of their friends, and we can start to see the shape of the legal fight to come. The court has expedited the briefing schedule, with final briefs due the middle of October, and oral argument expected in December. It is looking to be a fairly complex case, with multiple petitioners arguing in different directions, interveners on both sides, and plenty of amici weighing in. There are many ways in which the FCC’s order could unwind. Here I want to focus on a few of the most basic legal challenges that stakeholders have advanced.

First, a point that still seems lost on many -- the major Internet service providers (ISPs) are not challenging the basic net neutrality rules; instead they are focused on the Federal Communications Commission’s decision to classify broadband as a common carrier service under Title II of the Communications Act. The main argument of industry’s brief is that the FCC cannot accurately claim that broadband Internet access is a “telecommunications service” as defined by the Communications Act. This is a key argument because only telecommunications services can be regulated as common carriers under Title II. In the end, it is clear that key sections of the FCC’s order face what are likely insurmountable legal challenges. It is baffling that net neutrality advocates are not seizing this opportunity to lock in what is a high-water mark for their cause. A legislative fix that gives the FCC incontrovertible jurisdiction for widely agreed-upon open Internet principles while taking the controversial provisions of Title II off the table would be the best way to settle this issue.