In a joint brief filed with the D.C. Circuit Court this week, Internet service and public interest group appellants against the FCC’s “Internet Freedom” order argued that the FCC ignored or misinterpreted statute in restoring the classification of broadband Internet access service (BIAS) as a Title I information service. At the same time, 22 state attorneys general joined various state and local government entities in submitting a separate joint brief arguing that the FCC’s related decision to preempt state net neutrality laws violates tenets of the 1934 Communications Act, which they asserted established “a system of dual state and federal regulation.”

Adopted last December by a 3-2 vote along party lines, the Internet Freedom order repealed rules, promulgated by the FCC in the 2015 Open Internet order, which classified BIAS as a Title II telecommunications service that is subject to common carrier regulation. In addition to rolling back prohibitions against throttling, paid prioritization and other net neutrality protections that were adopted as part of the Open Internet order, the Internet Freedom order also (1) reinstated the classification of mobile broadband as a private mobile service, (2) defined BIAS as an interstate service, and (3) preempted state laws which conflict with federal rules that govern Internet service providers. Although BIAS providers are permitted to engage in paid prioritization, throttling and similar network management practices under the Internet Freedom order, the order includes transparency rules which require BIAS providers to disclose their blocking, prioritization and throttling practices to consumers. 

Characterizing Title II classification and other rules adopted through the 2015 Open Internet order as “heavy-handed utility-style regulation” that “imposed substantial costs on the entire Internet ecosystem,” the FCC explained at the time of its vote that it intended “to restore the longstanding, bipartisan light touch regulatory framework that has fostered rapid Internet growth, openness and freedom for nearly 20 years.” In their joint brief, however, appellants against the Internet Freedom order, including Mozilla, Vimeo, Public Knowledge, Free Press, the Ad Hoc Telecom Users Committee and Incompas, maintained that the FCC’s decision departs from previous agency rulings without justification, ignores statutory language, ignores contrary evidence in the record, violates the Administrative Procedure Act and “is otherwise contrary to law.” While citing the FCC’s view in the Internet Freedom order that Title II classification of BIAS imposed “considerable social cost, in terms of foregone investment and innovation with no discernable incremental benefit relative to Title I classification,” the industry and public interest appellants complained to the court that the FCC “did not engage in the robust cost-benefit analysis the [notice of proposed rulemaking] had promised, contenting itself with a ‘qualitative,’ ‘directional’ determination.” As they pointed to the legal definition of telecommunications as “the transmission of information between points specified by the user without change in the information’s form or content,” the appellants maintained: “there is no exception for transmissions that are intended to allow access to an information service.” The appellants further argued that “the order’s newly imagined exception to the telecommunications service definition is close to the very definition of telecommunications service” as they observed that “none of Comcast, AT&T or Verizon adds scenes to the movies we watch online or embellishes our friends’ notes on a social media wall.” 

Meanwhile, in their joint brief, attorneys general from the states of New York, California, Connecticut and 18 other states, the California Public Utilities Commission and various other state and local government entities lamented the Internet Freedom order as “a dramatic and unjustified departure” from the FCC’s previous long-standing commitment to “an open Internet free from blocking, throttling and other interference by service providers.” As they described the Internet Freedom order as “arbitrary and capricious because it failed to reconcile the Commission’s abdication of regulatory authority with the inevitable harms that the order will cause to consumers,” the governmental petitioners charged that the order “compounded its devastating impact on millions of Americans by purporting to preempt state and local laws that would protect consumers and small businesses from abuses by service providers.” Because the FCC “identified no valid authority for such preemption,” the governmental petitioners told the court that “the order’s attempt to preempt state and local laws thus must be invalidated.” 

The FCC is expected to reply to the appellants’ briefs in October. Although a spokesman for Internet and Television Association NCTA declined comment, U.S. Telecom Association President Jonathan Spatler emphasized that “our nation’s broadband providers stand with their consumers in supporting a free and open Internet without 1930s-era regulations and with consumer protections that are applied consistently across the entire Internet ecosystem.” Proclaiming that “consumers deserve smart, modern and unambiguous protections that apply consistently to all parts of the Internet ecosystem—not the backwards and balkanized approach these state attorneys generals would impose,” Spatler vowed: “that is what we will continue to fight for in this case and ultimately in Congress.”