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

Ditches First Amendment legal argument, tries another approach

Ignoring history?

The telco brief [PDF] claims that the FCC decision "ignores the regulatory backdrop of the 1996 Act," but glosses over the fact that that very background was that Congress had no idea what was going to happen to the internet, and so decided to give it as wide a berth as possible. It's not difficult to argue that 20 years later, and with the majority of the population using the internet every day, it might make sense to introduce legislation around protecting the network and people's use of it.

It's clear from the brief that the petitioners are uncertain that their key arguments will stick, given the number of "but if you disagree with that, here's another reason anyway" arguments (arguendo in legal speak).

Broadband – fixed and mobile – "are information services immune from common-carriage regulation," it states, so the FCC decision "must fail." But, you know, just in case we're totally wrong, "many of the Order's key determinations would still fail."

As for the overreaching authority argument, the brief says: "Congress never envisioned entrusting the FCC with the extraordinary authority that the [net neutrality rules] purport to exercise."

And they also bring out what has become an old canard about companies not investing in broadband if the rules stand: "These rules will undermine future investment by large and small broadband providers, to the detriment of consumers," it claims, despite the fact that since the rules have passed, one telco after another has backtracked on the claim and announced new investment.

Does anyone seriously believe that companies will not invest in faster internet access just because there are some rules that may make it less profitable? It's like arguing car manufacturers won't make many cars because of the need to introduce seatbelts.

In short, there is nothing surprising in the brief – all the arguments have been hashed out in public for over a year. And the big difference between these FCC rules and the last ones that were overturned by the Verizon lawsuit is that this time, you don't have people who agree with the general thrust of the rules questioning its structure and approach.

Then again, when you have no less than 28 of the country's highest paid lawyers all focused on trying to tear something apart, you'd be a fool to write off their chances. ®

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