Net Neutrality Foes Ask an Appeals Court to Halt Key New Rule

The opponents, led by USTelecom, AT&T and others, are seeking to stop the FCC from reclassifying the Internet as a public utility under Title II of the U.S. Communications Act.

Opponents of the Federal Communications Commission's plans to reclassify the Internet as a public utility under the U.S. Communications Act are asking a federal appeals court to halt the FCC's upcoming changes by issuing a stay or to expedite the review of the matter on behalf of the plaintiffs before the new rules are to take effect on June 12.

In a 51-page motion filed on May 13, opponents of the FCC's plans, including USTelecom, the National Cable & Telecommunications Association, CTIA—The Wireless Association, AT&T, the American Cable Association, CenturyLink and the Wireless Internet Service Providers Association, are asking the U.S. Court of Appeals for the D.C. Circuit to halt the FCC's Open Internet Order in its tracks.

The opponents filed their request after the FCC denied their formal request to the agency that it delay the reclassification changes until several legal cases are resolved. In a 19-page order denying the delay requests, the FCC said on May 8 that the groups asking for the delay had failed to meet the requirements that would have allowed the agency to put them off.

With the delay denied, the opponents filed a motion to appeal the action with the courts.

In a May 13 statement, USTelecom President Walter McCormick reiterated that his group is not opposed to other changes laid out by the FCC such as rules prohibiting Internet blocking, throttling and paid prioritization, but is completely at odds with the reclassification provisions that are set to take effect on June 12. The opponents are "seeking to stay this ill-conceived order's reclassification of broadband service as a public utility service," said McCormick. "This reclassification does not serve the public interest, but unlawfully paves the way toward expansive government management of the Internet."

In his statement, McCormick also charges that the "FCC had no adequate legal basis for reclassifying broadband Internet access service as a Title II utility telecommunications service," which overrides existing governing statutes and decades of commission and court decisions. "Once implemented, the order will result in huge burdens on companies of all sizes, and create an open season of regulation and litigation that imposes immediate and unrecoverable costs."

In a separate statement, Scott Belcher, CEO of the Telecommunications Industry Association (TIA), said that his group supports the plaintiffs in the fight against the FCC's Internet reclassification.

"Once again, TIA stands with others in calling for a stop to the FCC's efforts to regulate the Internet like a utility," Belcher said in his statement. "The United States has the best Internet in the world because it is a product of a free-flowing system that promotes innovation. The FCC's new Title II rules will impact investment in new broadband infrastructure, impeding the growth and innovation that has that taken us this far."

The opponents of the new rules object to the FCC's reclassification of the Internet as a public utility under Title II of the U.S. Communications Act, which gives the FCC the power to regulate Internet communications in the United States. Title II was originally intended to make sure that telephone companies provided service to anyone in their coverage area. The opponents argue that the FCC's reclassification of the Internet will harm consumers, stifle innovation and ultimately be bad for the Internet itself. The opponents claim that the FCC's move to place broadband providers under the rules of Title II is arbitrary and capricious, and violates federal law.

The delay requests filed earlier this month were filed by two groups made up of the USTelecom Association, CTIA-The Wireless Association, AT&T, CenturyLink and the Wireless Internet Service Providers Association in one petition, and by the National Cable and Telecommunications Association and the American Cable Association in another petition.

In its response to the petitions, the FCC ruled that it rejected the requests because the applicants "failed to demonstrate that they are likely to succeed on the merits" of their case, since the FCC's classification of fixed and mobile telecommunications services falls "well within the Commission's statutory authority," according to the FCC's filing. The FCC also rejected the claim by the petitioners that the agency's actions will irreparably harm others as a result of the new rules.

The legal battle over the new net neutrality rules is likely to go on for some time.

In March and April, the FCC was hit with six earlier petitions opposing the Title II reclassification of the Internet, according to earlier eWEEK reports. Those legal actions were filed separately by AT&T, the CTIA mobile trade association, the National Cable & Telecommunications Association (NCTA), the American Cable Association, USTelecom (a Washington-based telecommunications trade group) and Alamo Broadband.

In February, the FCC approved its new net neutrality rules by a 3-to-2 vote, with the key and most controversial change being that the agency will now begin to regulate the Internet as a public utility under Title II.

Many critics passionately opposed the move, arguing that the Internet does not need that kind of oversight and that it would ultimately stifle innovation and increase costs and hassle for consumers. The FCC countered that the new regulations would "set sustainable rules of the roads that will protect free expression and innovation on the Internet and promote investment in the nation's broadband networks," according to an earlier eWEEK report. Two prior attempts by the FCC to set rules for Internet use into the future were struck down by courts, but the latest attempt resolves the legal issues that eventually undermined those attempts, the agency said. Critics vehemently disagree with that analysis.

The new FCC rules also include key provisions that broadband providers cannot block access to legal content, applications and services, nor can they "throttle," or slow up, access to lawful Internet traffic, according to the FCC. Also prohibited under the new rules is paid prioritization in which broadband providers could favor some lawful Internet traffic over other lawful traffic in exchange for extra payments, essentially prohibiting so-called fast lanes to the highest bidders.

The issue of net neutrality has been a hotbed for several years, with proponents and opponents arguing their positions and bashing the opposition verbally in public forums and discussions.