FCC Defends Title II in Court

The Federal Communications Commission filed its opening brief in the industry challenge to its Open Internet order and its reclassification of Internet access as a telecommunications service under Title II common carrier rules. It took the FCC 157 pages to make its case, which included that the FCC was free to change its mind about the classification of broadband access. According to the FCC's summary of its argument, it reasonably interpreted the definition of telecommunications service in the Communications Act to include the "separable" telecommunications component of broadband Internet access service, and used its court-recognized subject matter expertise to interpret a vague definition. "As the Supreme Court held, the term 'telecommunications service' is ambiguous and the relevant analysis of whether a broadband service includes a separate offering that is a 'telecommunications service' turns 'on the factual particulars of how Internet technology works and how it is provided, questions that Chevron leaves to the Commission to resolve in the first instance.'” The FCC also told the court that the cable and telecommunication company Internet service providers challenging the decision have mischaracterized the order, an effort that the FCC said has failed.

The FCC also said it did not violate the First Amendment rights of Internet service providers when it voted to implement net neutrality rules. ISPs are conduits for the speech of others; they are not delivering their own messages when they connect their customers to the Internet, the FCC argued. Rules against blocking and throttling Internet content thus do not violate the ISPs’ constitutional rights, the FCC said.