ISP Intervenors Back FCC 'Internet Freedom' Defense, as Do Over a Dozen Amicus Briefs
Net neutrality litigation is about whether the FCC may ensure "light touch" regulation of broadband, not about internet openness, said USTelecom, CTIA, NCTA, the American Cable Association and Wireless ISP Association in a supporting intervenor brief Thursday citing their commitment…
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to an open internet. The Supreme Court's 2005 "Brand X makes clear that the Commission may do so, and the ["internet freedom"] Order demonstrates that the Commission’s decision to follow that path was reasonable," the ISP groups argued to the U.S. Court of Appeals for the D.C. Circuit in Mozilla v. FCC, No. 18-1051: The FCC "amply" justified returning to a "flexible" Communications Act Title I regime (see 1810120022). "Petitioners establish no distinction between the Order’s classification of broadband as an information service and the 2002 Commission decision reaching the same conclusion, which Brand X upheld," said the ISPs. "The Commission lawfully preempted state and local regulation of broadband, which is a jurisdictionally interstate service." The order rightly repealed the "unconstitutional" 2015 Title II net neutrality order that "violated" individuals' speech rights, argued intervenor Leonid Goldstein, of Austin. "So long as an agency acts within its realm of authority, its decision to alter a pol-icy decision -- or even reverse course -- is not subject to a special, enhanced standard of review," argued amici Texas, Arkansas and Nebraska. The Title I order "is eminently justified given the highly competitive nature of the broadband market and the importance of removing unnecessary barriers," argued the National Association of Manufacturers, U.S. Chamber of Commerce, Business Roundtable and Telecommunications Industry Association. Petitioner network arguments that broadband internet access "can only be rationally classified" as a Title II service are wrong, argued network architect Richard Bennett and others. The court should resolve the legal questions "definitively to put an end to the regulatory 'ping pong,'" argued TechFreedom. Countries "with hard bright line rules do not exhibit increased innovation at the edge," argued scholar Roslyn Layton: "Increased edge innovation is seen in countries with soft net neutrality rules (e.g., Sweden, Norway, Denmark, South Korea)" or "no rules at all." Other amicus filers were: Technology Policy Institute, Tech Knowledge, Georgetown Center for Business and Public Policy, Multicultural Media, Telecom and Internet Council, International Center for Law and Economics, Phoenix Center, Information Technology and Innovation Foundation, Washington Legal Foundation and Southeastern Legal Foundation and Christopher Yoo.