AT&T, Industry Organizations Challenge FCC Open Internet Order

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AT&T, Industry Organizations Challenge FCC Open Internet Order

By Paula Bernier, Executive Editor, TMC  |  June 08, 2015

The FCC’s Open Internet Order is set to go into effect June 12. But foes of the order didn’t wait to challenge it in court. Several industry groups and AT&T (News - Alert) in mid April separately sued the commission for the recently passed rules.

In a March 12 blog, AT&T’s Jim Cicconi, senior executive vice president of external and legislative affairs, commented: “Unfortunately, the order released today begins a period of uncertainty that will damage broadband investment in the United States. Ultimately, though, we are confident the issue will be resolved by bipartisan action by Congress or a future FCC, or by the courts.” About a month later, AT&T attempted to make good on that last point by suing the Federal Communications Commission over its net neutrality rules.

The move by AT&T followed in the footsteps of similar challenges to the FCC from various communications industry trade groups.

USTelecom (News - Alert) the same week announced it filed suit in the U.S. Court of Appeals for District of Columbia to challenge the FCC’s open Internet/net neutrality order “on grounds that it is arbitrary and capricious, and violates federal law.” USTelecom President Walter McCormick called the FCC’s order an “unjustifiable shift backward to common carrier regulation after more than a decade of significantly expanded broadband access and services for consumers under light-touch regulation.”

CTIA, the wireless industry association that FCC Chairman Tom Wheeler (News - Alert) headed up for years, also has filed a lawsuit with the D.C. Circuit Court of Appeals. In a CTIA blog explaining the move, CTIA President Meredith Attwell Baker, a former FCC commissioner, mentioned FCC overreach and commented that “the FCC usurped the role of Congress and departed from a bipartisan mobile-specific framework to create a new intrusive regulatory framework.”

The American Cable Association and the National Cable & Telecommunications Association also have filed petitions for review of the FCC’s decision to reclassify broadband ISPs under Title II. ACA President and CEO Matthew M. Polka said this new order places on ACA members, half of which have 1,000 or fewer customers, the burden of negotiating complicated new rules, which will create confusion and waste resources. The NCTA petition was filed in the U.S. Court of Appeals for the D.C. Circuit; U.S. Solicitor General Theodore B. Olson (News - Alert) and former U.S. Assistant to the Solicitor General Miguel A. Strada of Gibson Dunn are representing the NCTA in this effort.

“This appeal is not about net neutrality but the FCC’s unnecessary action to apply outdated utility style regulation to the most innovative network in our history,” said NCTA (News - Alert) President and CEO Michael Powell, who served as FCC chairman from 2001 until 2005. “The FCC went far beyond the public’s call for sound net neutrality rules. Instead, it took the opportunity to engineer for itself a central role in regulating and directing the evolution of the Internet.” 

The FCC on Feb. 26 approved by a vote of 3 to 2 the new Open Internet rules, which implement what’s known as Title II reclassification of broadband Internet access. Title II, part of the Communications Act of 1934, gives the FCC authority to regulate telecommunications providers as utilities or common carriers. The Open Internet rules ban paid prioritization, and the blocking and throttling of lawful content and services on broadband connections to the Internet. These rules apply both to wireline and wireless broadband.

“To preserve incentives for broadband operators to invest in their networks, my proposal will modernize Title II, tailoring it for the 21st century, in order to provide returns necessary to construct competitive networks,” FCC Chairman Tom Wheeler wrote in a recent op-ed piece for Wired. “For example, there will be no rate regulation, no tariffs, no last-mile unbundling. Over the last 21 years, the wireless industry has invested almost $300 billion under similar rules, proving that modernized Title II regulation can encourage investment and competition.”

Tim Berners-Lee, who is said to have invented the World Wide Web in 1989, in a video shown at the FCC meeting at which the order was passed, commented “I applaud the chairman’s decision” on the Title II decision. Other supporters of the decision at the meeting included Chad Dickerson, CEO of crafty online marketplace Etsy, who said his organization and its sellers rely on the open Internet to do business and earn a living.

Edited by Stefania Viscusi