Twenty-nine Democratic and independent lawmakers in the House and Senate joined forces in filing an amicus brief with the D.C. Circuit Court of Appeals in defense of the FCC’s decision to reclassify broadband Internet services as telecommunications services pursuant to Title II of the 1934 Communications Act. The briefs were filed Monday in the matter of United States Telecom Association et al. v.FCC, in which US Telecom, wireless association CTIA and other petitioners have asked the D.C. Circuit to overturn the Title II portion of last February’s Open Internet order. In addition to claiming that the FCC exceeded its jurisdiction in subjecting broadband to Title II regulation, the appellants also contend that the FCC failed to provide sufficient public notice of its plan to reclassify broadband.
In its brief filed a week ago, the FCC advised the court that reclassification of broadband as a Title II telecommunications service interprets “the precise term” that the Supreme Court found to be ambiguous in its Brand X decision ten years ago, and that such an interpretation “deserves deference” pursuant to the high court’s 1984Chevron ruling. Offering their views as “members of Congress who have been active in telecommunications policymaking,” ranking House Communications & Technology Subcommittee member Anna Eshoo (D-CA), Senator Ed Markey (D-MA) and 27 of their colleagues argued that reclassification of broadband access services under Title II “is supported by the plain language” of the 1996 Telecommunications Act. The brief asserts that in the statute Congress stated its intention “to preserve the FCC’s authority to forestall threats to competition and innovation in basic communications services, even as the technology used to offer those services evolved over time.” As such, the lawmakers emphasized that the FCC “has done precisely what Congress intended the Commission to do—classify broadband Internet access service according to its best understanding of the technology of the day and how consumers use that technology.” Even if the court were to conclude that the language of the 1996 Act has “some ambiguity,” the lawmakers alluded to Chevron in asserting that the FCC should be given “substantial discretion” to interpret that language. Observing that the lawmakers’ brief “reflects our strong support for the FCC’s legally sound net neutrality rules,” Eshoo remarked that, “today, we join together in support of a common cause.”