Tomorrow, the DC Circuit Court will hear oral arguments on the FCC’s Open Internet (aka Net Neutrality) Order, which reclassified broadband as Title II service subject to public utility-style regulation. We strongly believe that the reclassification of broadband under Title II was wrong as a matter of law and potentially disastrous as a matter of policy. Tomorrow’s argument will consider the former issue – whether or not the FCC had the legal authority to impose Title II common carrier regulation on ISPs as a basis for adopting Net Neutrality rules.
The argument is not about preserving an open Internet. As we’ve made clear many times before, we support an open Internet. Indeed, for the better part of two decades Internet providers have invested hundreds billions of dollars into building, maintaining, and improving an open Internet experience for our customers. Our industry supported the FCC’s original Open Internet principles and the 2010 Open Internet Order. And we continued to live by the Open Internet principles even after the courts rejected the FCC’s rules.
Why do we think the FCC overstepped its authority in reclassifying broadband? In order for the FCC to reclassify broadband under Title II, it must qualify as a “telecommunications service” under the statute. For over a decade, however, the FCC had deemed broadband an “information service” based on the statutory language in the 1996 Telecommunications Act. This interpretation was upheld in the Supreme Court’s 2005 Brand Xdecision. One reason this classification has been so consistently upheld by both the FCC and the courts is because anyone who uses the Internet knows it is more than just a dumb pipe that transmits data. It’s a smart network that allows for storage, transformation, and retrieval of data. It fits the very definition of an information service.
Tomorrow, our attention will be squarely focused on the FCC’s authority to exert Title II reclassification over Internet providers. We have long supported clear guidelines that protect consumers from unfair Internet policies and are in favor of rules that protect consumers’ right to access the Internet content of their choice. But reclassifying broadband as a Title II telecommunications service is not only a bad idea, it’s unlawful.