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It’s round 2 in the net neutrality court challenge

A coterie of Title II opponents have filed intervenor and amici briefs with the D.C. circuit court of appeals, calling on its justices to overturn the Federal Communications Commission’s open Internet order. While their arguments are varied, their goal is the same–free the Internet from what they consider to be intrusive and arbitrary government regulation.

TechFreedom, a non-partisan technology policy think tankfiled its intervenor brief on behalf of itself and of Internet entrepreneurs Jeff Pulver, Scott Banister, Charles Giancarlo, Wendell Brown, and David Frankel.

The brief argues that 1996 Telecom Act doesn’t authorize the FCC to regulate the Internet and that the Internet should remain ‘unfettered by Federal or State regulation.’ The brief also states that the FCC failed to demonstrate any significant or systematic abuses that could not be addressed by existing laws or market forces.

“That the commission felt it necessary to ‘tailor’ Title II so extensively should have made it obvious that it took a wrong interpretive turn and that its ‘modernized Title II’ far exceeds what Congress intended,” said Berin Szoka, president of Tech Freedom, in a statement.

The Telecommunications Industry Association (TIA), a leading association representing the manufacturers and suppliers of high-tech communications networks argued that the FCC’s decision to use a regulatory framework developed in 1934 for a monopoly telephone network did not include a proper evaluation of the impact on broadband investment. Their brief states that the “FCC failed to consider and respond adequately to extensive record evidence demonstrating that reclassification of broadband Internet access as a common-carriage telecommunications service would significantly diminish investment in broadband networks.” The TIA also argues the rule making was “arbitrary and capricious.”

Richard Bennett, founder and publisher of High Tech Forum argues that the Internet is an information service and that the FCC’s broad ban on throttling and paid prioritization denies entrepreneurs access to services that require priority transit from server to client. “This is very good for ISPs because it puts them in a privileged position for voice, video conferencing, and video streaming, but it’s bad for the innovation economy,” Bennett argues.

“The FCC’s order is an example of a bungling regulator achieving exactly the opposite effect from the one it set out to cause by failing to understand the subject matter. The Internet is capable of being much, much more than it has ever been, but the FCC’s ham-fisted regulatory model will actually cause it to be much less than it is today,” said Bennett.

The Georgetown Center for Business and Public Policy filed a brief signed by thirteen experts in the economics of innovation and regulation from across the political spectrum, including former FCC chief economist Gerald R. Faulhaber.

The Center argues that the FCC overstates the benefits of Title II based on an unsupported finding that Internet service providers may someday use “gatekeeper” power to harm consumers and content providers; that the FCC dismissed the very real threats to innovation, investment, and output from Title II regulation and that the FCC ignored the benefits of twenty years of Congressional and FCC “light touch” regulation of the internet.

“It is, in short, no coincidence that the explosion of innovation that has come to define the communications sector over the past twenty years overlaps perfectly with the period of light-touch regulation,” states its brief.

Center for Boundless Innovation in Technology grounds its case in the First Amendment. It argues that a broadband provider is indistinguishable from a printing press, a newspaper, a broadcaster, and a cable operator.
The Open Internet Order restricts the ability of providers to exercise any degree of discretion over their transmission of political speech, they compel them to carry the speech of all others, and they favor the speech of other Internet companies over broadband providers’ own speech.

Former FCC commissioner Harold Furchtgott-Roth and the Washington Legal Foundation makes two arguments: that Section 706 of the Telecommunications Act of 1996 does not authorize the FCC to regulate the Internet and that the open Internet order won’t hold up to First Amendment scrutiny.

The Multicultural Media, Telecom and Internet Council argued that public utility style regulation will harm the digitally unserved and underserved who urgently need the economic, social, educational and civic benefits broadband provides.

The National Association of Manufacturers, the Business Roundtable, and the Chamber of Commerce of the United States of America argue that new broadband regulation is unnecessary and that new regulation would stifle investment in new broadband technology.

The Competitive Enterprise Institute attacks Section 706 as the justification for the Open Internet Order, arguing that the section is not a delegation of authority to the FCC by Congress.

Mobile Future, an association of businesses and non-profit organizations argue that the FCC failed to provide a justification for abandoning its prior finding that mobile broadband merits a limited, “measured” approach to open Internet regulation. The brief also argues that the order ignores the reliance that mobile-broadband driven investment has had on mobile’s established classification as an information service.

Phoenix Center for Advanced Legal and Economic Public Policy Studies mounts a highly technical argument that the FCC has imposed a de-facto rate of zero dollars for the services an ISP provides to an edge provider.

“Perhaps the Commission can devise a scheme by which to support a uniform zero price as being ‘just and reasonable’ and ‘not unreasonably discriminatory,’ but it has not yet done so and it is not the responsibility of this Court to compensate for the Commission’s lack of effort,” concludes the brief. “The Order’s zero-price rule is both confiscatory and chosen in an arbitrary and capricious manner contrary to law.”

Christopher Yoo, an Internet legal scholar, argued that the order contradicts the technical principles that determined the Supreme Court’s decision in National Cable & Telecommunications Association v. Brand X Internet Services.

The International Center for Law and Economics drew on the expertise of several scholars and telecom law experts to argue that the FCC exceeded its legal authority as well as Supreme Court precedent in issuing the Open Internet order. They also argue that the FCC failed to consider appropriate economic studies, evidence and costs of the rules.