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First briefs filed in legal challenge to FCC’s open Internet order (updated)

The first briefs were filed Thursday in the legal challenge to the Federal Communications Commission’s open Internet order, kicking-off an expedited schedule set by the D.C court of appeals. Oral arguments could come as soon as the end of this year.

Petitioners briefs were due Thursday. Next week, the joint opening brief from those supporting the petitioners are due. The FCC’s opening brief is due Sept. 14.

The longest petitioner brief was filed jointly by the big guns representing the wireless cable, and telecom companies: USTelecom Association, National Cable & Telecommunications Association, CTIA – The Wireless Association, American Cable Association, the Wireless Internet Service Providers Association,  AT&T and CenturyLink.

The USTelecom et al. brief argues against the portion of the FCC’s order that reclassifies Internet service providers as common carriers, subjecting those businesses to Title II regulations written for telephone companies.

“We are not appealing the FCC action because of net neutrality. In fact, we have been vocal in our support of the FCC crafting reasonable net neutrality protections for consumers. Unfortunately, the FCC went well beyond that sensible mission and chose to impose an outdated, far-reaching and punitive regulatory model on today’s dynamic Internet. With Title II opening the door for rate regulation, higher taxes and fees and the ability for government the set the terms and conditions of business relationships, we had no choice but to appeal,” the NCTA said in a statement.

The brief makes four main points. First, the commission illegally reversed years of established regulatory history based on claims that consumer perceptions about what broadband providers offer have drastically changed.  Second, the order is unlawful because Congress classified the Internet as an information service and never intended to classify it as a common carrier service. Third, the order is arbitrary because it distorts the meaning of the communications act. Finally, the order was the product of improper procedure because the notice of proposed rule making proposed a more modest course than what was ultimately decided.

“The order is not the culmination of a thoughtful and deliberate process. It is the output of an agency determined (or pressured) to reach a particular result and visibly struggling to devise a post hoc justification for contradicting Congress’s pronouncements, the agency’s own longstanding policy, and real-world facts. It is, in short, a sweeping bureaucratic power grab by a self-appointed ‘Department of the Internet,'” the brief reads.

The wireless business believes it should not be regulated the same as wireline Internet service providers.

“America’s global mobile leadership is at risk under the FCC’s heavy-handed net neutrality rules on wireless broadband. There is no question: wireless is different. Due to the technical realities of wireless networks, providers must be able to manage usage so that all consumers have the highest quality experience,” the CTIA said in a statement.

Another brief, filed by Alamo Broadband and Daniel Berninger, argues that the FCC’s open Internet conduct rules strip providers of control over which speech they transmit and how they transmit it; that the open Internet rules are unsustainable under Section 706 and that Section 201(b) unambiguously forecloses the ban on paid prioritization by expressly authorizing “just and reasonable” practices and “different charges” for “different classes” of Internet service.

The third brief, filed by Full Service Network, Truconnect Mobile, Sage Telecommunications, and  Telescape Communications, argues that the FCC’s forbearance is illegal; the open Internet order fails to apply the definitions spelled out in telecom act; the plain language of the act defines broadband internet access as a “Telecommunications Service” and that Section 706 of the 1996 Act does not grant independent regulatory or enforcement authority to the FCC.

Petitioners are supporting GOP efforts in Congress to come up with a legislative alternative to the FCC’s order that would codify the principles of net neutrality, but stop short of classifying Internet service providers as common carriers. Progress on a bill has been slow, barely making it into the draft stage. Appropriations measures in the House and the Senate have proposed in the FCC budget riders to neuter the order.

The FCC’s open Internet order went into effect June 12.