ISPs want Supreme Court to kill Title II net neutrality rules now and forever

FCC may soon revoke net neutrality rules, but ISPs want immunity from regulation.

Broadband industry lobby groups have appealed to the US Supreme Court in an attempt to kill the Federal Communications Commission's net neutrality rules. The groups want the Supreme Court to rule that the FCC exceeded its authority when it reclassified Internet providers in order to impose stricter regulations.

Under President Obama, the FCC's Democratic majority reclassified home and mobile broadband providers as common carriers under Title II of the Communications Act in order to enforce net neutrality rules.

With Republicans now in charge, the FCC is on track to overturn the rules. But a Supreme Court decision in favor of Internet providers could protect them from future attempts to regulate the industry if, for example, Democrats eventually re-take the White House and FCC.

Try, try again

The broadband industry lost its first attempt to overturn the Title II net neutrality order last year when a three-judge panel at the US Court of Appeals for the District of Columbia Circuit upheld the FCC decision. The FCC won again in May of this year when the court denied the lobby groups' petition for an en banc review in front of all of the court's judges.

Yesterday, the industry groups filed petitions for a writ of certiorari asking the Supreme Court to review the lower court's decision.

The lobby groups want a ruling that the FCC exceeded its statutory authority by reclassifying broadband as a common carrier service. Such a ruling could prevent future FCCs from implementing net neutrality rules as strict as the current ones, which outlaw blocking, throttling, and paid prioritization. A ruling for the industry could also prevent future FCCs from reviving other consumer protections that are likely to be overturned by the commission's current Republican majority.

Lobby groups also allege that the FCC didn't do enough to justify its decision and that it didn't follow the required administrative procedures. But for potential long-term impact, the question of whether the FCC has the authority to classify broadband as a common carrier service is probably more significant.

Whether the Supreme Court will actually decide to hear the case is far from certain. The vast majority of petitions are denied, and FCC Chairman Ajit Pai's plan to revoke the net neutrality rules may make it less likely for the Supreme Court to intervene. Still, lobby groups want their day in court.

"Congress never entrusted the Commission with the extraordinary authority to subject broadband providers to Title II of the Communications Act of 1934," NCTA, the cable industry's biggest lobby group, said in its Supreme Court filing.

ISPs want strict limits on FCC authority

NCTA pointed to a 2005 Supreme Court ruling in the Brand X case. That ruling upheld an earlier declaration by the FCC that cable Internet is an information service and thus cannot be regulated as heavily as a telecommunications service.

"The court of appeals’ holding that broadband Internet access service, in its entirety, can be defined as a telecommunications service cannot be reconciled with Brand X, in which all nine Justices agreed that a service enabling customers to interact with stored data on the Internet is, at a minimum, an information service," NCTA said in its appeal.

In fact, the Brand X ruling said that agencies like the FCC can interpret statutes however they want "if a statute is ambiguous, and the implementing agency’s construction is reasonable." The deference judges have shown to the FCC has helped both Republican and Democratic FCC majorities win court cases over the definition of broadband service, as we noted in this story.

NCTA recognized that, but argued that Brand X only applied to one portion of broadband service and should not be read too broadly. Congress never granted the FCC authority to regulate broadband providers as common carriers, the group argued.

"The ambiguity identified in Brand X did not concern whether broadband is an information service or a telecommunications service; it concerned whether the high-speed delivery over the last mile to a customer’s home of the information service that broadband unquestionably provides is a separate and 'addition[al]' telecommunications service," NCTA wrote.

"The ambiguity identified in Brand X thus is irrelevant because the [net neutrality order's] reading goes beyond the scope of whatever ambiguity the statute contains," NCTA also wrote.

A similar argument came from the American Cable Association (ACA), which represents small and mid-size cable companies.

"The court of appeals sustained the FCC’s about-face here based solely on its reading of this Court’s decision in Brand X," the ACA said in its appeal. The ACA continued:

Whether the FCC could categorize the entirety of Internet access service as an "information service," notwithstanding its inclusion of a telecommunications component (the basic wireline-transmission portion), was sufficiently important for this Court to resolve it in Brand X. Whether the FCC can now re-characterize Internet access as a common-carrier telecommunications service—even though Internet access service falls squarely within the definition of "information service" and outside the definition of "telecommunications service"—is no less worthy of review.

Mobile broadband “immune”

Appeals also came from CTIA-The Wireless Association and AT&T, which want the Supreme Court to declare that mobile Internet access is immune from common carrier regulation. Other appeals were filed by USTelecom, CenturyLink, and VoIP technologist Daniel Berninger.

ISPs could also get protection from Congress. Republicans have occasionally proposed bills that would enshrine some form of net neutrality rules while specifically barring the FCC from using its Title II authority to regulate broadband.