Oh, IT'S ON. IT. IS. ON: Google, Netflix et al square up to telcos in net neutrality showdown

Internet Association joins bloated FCC legal battle


Internet companies have jumped into the lawsuit brought by Big Telco against America's net neutrality rules.

The Internet Association, which is the Washington DC lobbying group for the likes of Amazon, Etsy, Facebook, Google, Netflix, PayPal, Twitter, Uber at al, has filed an amicus brief into the ongoing lawsuit against the Federal Communications Commission (FCC) and the net neutrality rules it approved in March.

The 39-page filing [PDF] doesn't make any new arguments and is noticeably weak on issue of law, but it does tee up a lengthy battle between the new and old status quos.

The case US Telecom Association et al versus FCC (case 15-1063) is being heard by the Washington DC District Court of Appeals and basically argues that the FCC encroached on Congress' authority by introducing its "Open Internet Order." The case itself will open on 4 December with a first round of oral arguments.

The lawsuit says the net neutrality rules are not valid since they do not account for the fact that ISPs offer an "information service" rather than a simple communications service like a telephone. The telcos also claim they were not given proper notice of the reclassification of their service.

In response, the Internet Association says that the FCC did properly use its authority when it voted in favor of the rules. It then talks about why the rules are necessary.

It gives a number of examples from its member companies to argue for the openness of the internet. "eBay, for instance, was founded in 1995 by one man in a living room with a vision – and a software code – to connect people through e-commerce," reads the brief. "Today, eBay has nearly 32,000 employees and more than $14 billion in annual revenue." It provides similar glowing reports for Etsy, Airbnb, and Uber.

This "open internet" needs to be protected, the brief argues, which is why the FCC's order is "necessary."

The open characteristics of the Internet's architecture, on which the virtuous circle of Internet innovation and investment depends, are not immutable. ISPs have absolute control of the physical layer of their networks. That control, coupled with the fact that "all end users generally access the Internet through a single broadband provider," places them in the unique position of 'gatekeeper' with respect to edge providers that might seek to reach its end-user subscribers.

Back in the real world...

It's not clear how far the DC District Court will be swayed by such high-minded appeals and success stories.

The brief is notably weak when it comes to refuting the telcos' claims that the FCC should not have reclassified their services and should have allowed Congress to decide.

The Internet Association's core counter-argument is that the FCC's order "coherently and lawfully preserves consumers' expectations that they be able to reach substantially all points on the Internet without disruption or preference by ISPs." Which is far from the nuts and bolts of whether the decision was legal or fair.

So far it looks as though the FCC's order will prevail. As opposed to the last time it appeared in front of the DC Courts and lost over its open internet rules, this time the FCC spent a long time figuring out the legality of its position, in the sure knowledge that it would be sued.

The court itself also gave some guidance on what it expected to see in a new version of the rules. This is something that will work in the FCC's favor when it comes to deciding whether the FCC should have decided the rules itself, or left it to Congress.

But never say never when it comes to the law courts and Washington DC, especially when those bringing the lawsuit are among the most practiced and well-resourced lawyers in the country. ®


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