As the D.C. Circuit Court of Appeals announced the commencement of oral arguments on December 4  with respect to legal challenges against the FCC’s latest order on net neutrality, petitioners in the case submitted  their briefs in the appeal. The filings accuse the FCC of violating the 1934 Communications Act or  otherwise exceeding its statutory authority in enacting rules that reclassify broadband Internet  services as telecommunications services pursuant to Title II of the Act.

Approved on February 26, the FCC’s order restores anti-blocking, anti-discrimination and other net  neutrality mandates that were approved by the agency in 2010 but were subsequently struck down by  the D.C. Circuit. That court decreed that such rules constituted an illegal attempt to subject  broadband Internet service providers (ISPs)—which the FCC had earlier classified as Title I  information service providers—to Title II common carrier regulation. In reclassifying fixed and  wireless broadband services as Title II telecommunications services, the FCC’s February order aims  to supply the legal foundation to regulate broadband that the appellate panel ruled was missing in  the 2010 order.

The order prescribes a tailored approach to Title II under which the FCC said it would invoke its  forbearance powers to refrain from imposing pricing and other restrictions on ISPs that apply to wireline common  carriers.  The U.S. Telecom  Association, the National Cable & Telecommunications Association, wireless association CTIA and  four other petitioners, however, advised the court in a joint brief that broadband Internet access services function as  information services that “cannot fall within the ‘mutually exclusive’ category of  telecommunications service.” As they argued that Title II reclassification is therefore unlawful,  the joint filers also highlighted language contained in Section 230 of the 1996 Telecommunications  Act. That provision states that it is the policy of the U.S. to “preserve the vibrant and  competitive free market that presently exists for the Internet and other interactive computer  services, unfettered by federal or state regulation.” Observing that interactive computer services  are defined under Section 230 “to include any information service . . . that provides access to the  Internet,” the joint filers took issue with the FCC’s failure to “explain why broadband Internet  access falls outside the statutory definition of information service.”

Meanwhile, a group of small service providers led by the Full Service Network (FSN) told the court  in a separate brief that the FCC’s decision to forbear from applying certain Title II regulations  to broadband ISPs is unlawful in view of the FCC’s refusal to follow its own rules requiring  petitions for forbearance to include “a full statement of the petitioner’s prima facie case for  relief.” FSN further maintained that, pursuant to the 1996 Act, Congress intended that “only an  information service provided by a telecommunications carrier is prohibited from being regulated as  a common carrier service.” As such,  FSN  observed:    “the  only  way  for  the  statute  and  the   regulation  to  coexist  is  if  .  .  .  there  is  a  regulated telecommunications service included in the public offering of an information service.