New twist in telco giants' fight to destroy the FCC's net neutrality

Ditches First Amendment legal argument, tries another approach

Analysis When an entire page of a lawsuit is taken up just listing the lawyers on the case, you know you have hit some vested interests.

And so it is with the opening arguments [PDF] of the US Telecom Association et al versus the US Federal Communications Commission (FCC), aka status quo versus Open Internet.

There are seven petitioners in the case, most of them telecom associations (i.e., lobbyists) representing a large number of other companies, and the brief runs to 159 pages with 95 pages of argument.

It wants the Washington DC Court of Appeals to dismiss entirely the FCC's net neutrality rules by arguing, most broadly, that the FCC encroached on US Congress' authority by introducing its Open Internet Order.

What is interesting about the brief is that it has ditched previous efforts to make the case a constitutional matter by claiming the rules breach the First and Fifth Amendments (free speech, and protection from self-incrimination, respectively), and has instead gone for the argument that ISPs should not be treated as equivalent to telephone companies because they offer an "information service." They also claim they weren't given proper notice of the reclassification.

It seems a little hard to imagine that the latter argument will hold water, with the enormous attention given to the matter and the fact that the new rules stemmed from a Verizon lawsuit that started in 2011. But then, the army of lawyers will no doubt manage to find some procedural irregularities.

As for the "information service" argument: that was at the very core of the FCC's discussions and debates when developing the new rules, and the decision to reclassify broadband under Title II of the old Telecoms Act rather than the one-paragraph Section 706 of the revised 1996 Telecoms Act.

FCC chair Tom Wheeler repeatedly made mention of the fact that the FCC's lawyers were confident they had built a legally watertight case around the Title II reclassification. So the entire Appeals Court case is likely to be more a test of how good the FCC's lawyers are at writing a tight brief than anything to do with the internet.

Next page: Ignoring history?

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