Net neutrality wars: Telcos battle back

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Credit: Wikimedia/David Brandt

An avalanche of lawsuits protesting reclassification of broadband as a common carrier hits the FCC


Why are we still talking about Net neutrality -- didn't that fight end in a victory dance for advocates?

Perhaps in a parallel universe ISPs graciously conceded defeat and an open Internet was secured for the ages, but in this reality, it's not over until telecom companies have unleashed a full fury of lawyers. Gear up for another summer sequel, Net Neutrality Wars: The Lawyers Strike Back.

The FCC published its new Net neutrality rules to the Federal Register this week, starting the clock that counts down 60 days until the rules go into effect -- and triggering a legal avalanche. To date, two ISPs and four trade groups piled on six separate lawsuits

The suits challenge the FCC's decision to reclassify broadband as a common-carrier service under Title II, accusing the agency of (among other items) not following administrative procedure. According to Jonathan Banks, senior VP for law and policy at USTelecom, which filed one of the suits, the agency didn't give adequate notice that it was planning to reclassify the service.

I guess telecoms weren't paying attention back in 2010 when then FCC chair Julius Genachowski announced plans to reclassify broadband  or when current FCC chair Tom Wheeler promised last May to "seriously consider the use of Title II" -- or maybe they were overconfident that the former telecom lobbyist could be persuaded to back down.

The suits also claim the FCC didn't develop a sufficient record to support reclassification (only in lawyer land is a 400-page report insufficient record) and violated ISPs' constitutional rights.

Did I miss the part in the Constitution that enshrines the right to pursue monopolistic profit? In fact, the suits argue that requiring ISPs to provide the same speeds to all Web traffic violates their First Amendment free-speech rights -- never mind that most ISPs have sworn up and down they have no plans to throttle traffic

But when the suits state that the FCC's Net neutrality order is "arbitrary, capricious, and an abuse of discretion," we've descended into the realm of name calling.

Internet networks were in many respects treated like common carriers in the 1996 Telecommunications Act. But Bush-era decisions by then FCC chair Michael Powell (now the cable industry's top lobbyist) changed that by classifying broadband Internet access as an information service. A U.S. Supreme Court decision known as Brand X upheld the FCC's discretion for these definitions. "[The Court] looked at the FCC's decision to classify [cable access] as an information service and said, 'This isn't a great decision, it's probably not the best interpretation of the communications law, but it's not arbitrary and capricious,'" said FCC special counsel Gigi Sohn.

As The Verge writes: "The FCC flicked the classification switch toward information services back in 2002 -- now, with some WD-40, it can flick it back over to telecommunications."

To hear foes of Net neutrality -- like Ted Cruz -- tell it, they are motivated by a determination to save entrepreneurs from the interfering hand of big government. Problem is, there's already been plenty of government interference -- on the side of telecom monopolies. Many in Congress are still dancing feverishly to the telecoms' tune, despite overwhelming public support for an open Internet

Indeed, many argue the FCC's rules do not go far enough, given that they leave last-mile unbundling off the table and promise not to interfere with pricing. By mandating local loop unbundling,"we'd get competition in one stroke, as new entrants would vie to provide broadband access," writes NYU School of Law professor Christopher Sprigman. "In a competitive market, if Comcast throttles Netflix, then people who love Netflix can pick up the phone and arrange service with one of Comcast's competitors."

Who knows? Perhaps when all the legal wrangling is done -- which could take years -- and the FCC's reclassification of broadband is upheld, the agency will then focus its efforts on bringing a better semblance of competition to the market. If that ever happens, telecoms will have even more reason to rue the day Verizon squabbled over the light regulatory touch of Open Internet Order of 2010 and won.

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