In a brief filed Monday at the D.C. Circuit Court of Appeals, the FCC defended its decision in last February’s Open Internet order to reclassify broadband Internet services as telecommunications services pursuant to Title II of the 1934 Communications Act. The FCC premised its arguments on the D.C. Circuit’s 2014 pronouncements in Verizon v. FCC, which affirmed, in part, the FCC’s 2010 decision to apply net neutrality rules to broadband service providers. The Commission also advised the court that its decision to reclassify broadband services under Title II is entitled to the kind of deference enunciated by the U.S. Supreme Court in the 1984 Chevron ruling, which held that courts should give extra weight to a federal agency’s expertise in interpreting its statutory mandates.
While the US Telecom Association, wireless association CTIA and other appellants are not asking the court to block Open Internet rules that prohibit throttling and paid prioritization of lawful web transmissions across broadband networks, these and other parties contend that the FCC exceeded its jurisdiction in adopting the Title II portion of the Open Internet order. They also claim that the FCC failed to provide sufficient public notice of its plan to reclassify broadband under Title II. One other petitioner in the case—the Full Service Network (FSN)—assets that Title II reclassification is insufficient in that the order forbears from subjecting broadband ISPs to many of the Title II regulatory requirements that apply to common carriers.
The D.C. Circuit concluded in Verizon v. FCC that the FCC lacked authority to impose anti-blocking and other common carrier regulations on broadband ISPs, which the agency had previously treated as Title I information service providers. The FCC nevertheless began its brief by highlighting the court’s conclusion in that case that certain actions of broadband ISPs could impact Internet openness “absent rules such as those set forth in the  Open Internet Order.” In establishing Title II as the legal underpinning for the Open Internet rules, the FCC told the court that the term “telecommunications service” turns “on the factual particulars of how Internet technology works and how it is provided, questions that Chevron leaves to the Commission to resolve in the first instance.” The FCC also wrote that reclassification of broadband as a telecommunications service under Title II interprets “the precise term” that the Supreme Court found to be ambiguous in the high court’s 2005 Brand X ruling, and that such an interpretation “deserves deference” pursuant to Chevron.
Countering charges that the FCC failed to provide adequate notice of its intention to reclassify broadband services under Title II, the FCC observed that, while the underlying notice of proposed rulemaking (NPRM) “tentatively proposed relying only on Section 706 [of the 1996 Telecommunications Act],” the NPRM also stipulated that the agency “was ‘seriously considering’ reclassification.” The FCC also maintained that notice of its plan potentially to reclassify mobile broadband services as well as fixed broadband services “was equally adequate.” With respect to FSN’s claims, the FCC stressed that, because it had “reasonably” determined that its blanket decision to forbear from applying many Title II common carrier regulations to broadband ISPs satisfies Section 10 of the 1934 Communications Act, “the Commission need not first find persuasive evidence of competition on a market-by-market basis” before forbearing from such regulation.