FCC Chairman Vows to Deliver ‘Broadband to All Americans’ as Net Neutrality Challenges Fly

Associations of ISPs, wireless companies, broadband providers say agency went too far; Tom Wheeler responds, “You can’t say you’re for broadband – but endorse limits on who can offer it”

Open Internet Order - net neutrality (FCC.gov)

Updated: Notice of AT&T’s filing added at 4 p.m. PT

While expected legal challenges to the FCC’s net neutrality decision are flying fast in the wake of the formal publication of the new rule in the Federal Register on Monday, agency Chairman Tom Wheeler remains defiant.

“Across the country, we see community after community stepping up to write their broadband future,” Wheeler said in a speech in Austin, Texas, to the Broadband Communities Summit on Tuesday. “The FCC is proud to be working with you to deliver the benefits of broadband to all Americans.”

On Tuesday the National Cable and Telecommunications Association, which represents internet service providers, the American Cable Association, which represents small cable companies, and CTIA, which represents wireless providers, and AT&T all filed appeals of the FCC action to the U.S. Court of Appeals for the District of Columbia.

Their filings came a day after the USTelecom, the association for broadband providers, which filed earlier, filed an updated petition.

Still possible are challenges from Verizon.

All the appeals argue that the FCC’s action was “arbitrary” and “capricious.”

The initial petitions to the appeals court don’t say much about the reasoning, but officials of several of the associations said they expected to challenge the FCC’s decisions to classify Internet connections as utility services and to substantially alter its first draft of regulations last year without first issuing a revised final draft. Wireless carriers are also expected to question the FCC’s authority to regulate wireless services.

NCTA said it has hired two high powered lawyers, former U.S. Solicitor General Theodore B. Olson and former U.S. Assistant to the Solicitor General Miguel A. Estrada, to wage its challenge

“The FCC, in effect, has impermissibly rewritten the Communications Act,” Olson said in a statement. “Congress clearly intended for the Internet to evolve unencumbered by complex, inefficient government regulations. Instead of letting regulators play the central role in determining how the Internet evolves, they wanted these decisions to be left to the creativity of entrepreneurs, engineers and consumers. The Commission’s decision to expand its power and apply heavy regulation has undermined that core principle. I believe we have a powerful and compelling case.”

CTIA President and CEO Meredith Attwell Baker said the group’s suit reflects the extent of the FCC’s move.

“CTIA and the wireless industry have always supported an open Internet, which is why these rules will only chill investment and innovation and increase costs for consumers,” Baker said. “The FCC ignored that the competitive, constantly innovating mobile broadband industry provides Americans with faster networks and a wide variety of devices and service plans. Instead of promoting greater industry investment in the connected world of tomorrow.”

She said the FCC’s action “usurped the role of Congress and departed from a bipartisan mobile-specific framework to create a new intrusive regulatory framework. CTIA had no choice but to seek judicial review to preserve the regulatory approach that has been instrumental in helping the U.S. become the global leader in 4G services.”

ACA President and CEO Matthew M. Polka in statement called the FCC’s action “legally unsupportable and a step backward.”

“The Open Internet Order needlessly saddles ACA’s members — half of which have 1,000 customers or fewer — with the extraordinary burden of complying with a complicated new regulatory regime. They will have to divert untold time, capital and resources from upgrading their networks and service to ensuring legal compliance with rules that address hypothetical concerns foreign to their experience and well beyond their ability or desire to implement.”

USTelecom President Walter McCormick offered a similar view.

“USTelecom believes the FCC used the wrong approach to implementing net neutrality standards, which our industry supports and incorporates into everyday business practices. Our appeal is not focused on challenging the objectives articulated by the President, but instead the unjustifiable shift backward to common carrier regulation,” he said in a statement.

The challenges have been widely expected. One reason Wheeler cited for turning to common carrier rules to support net neutrality was the conviction that it could most easily stand the expected legal assault.

In his Broadband Communities Summit speech, Wheeler defended the FCC’s actions as good for investment.

“Because competitive broadband investment is more important now than ever before, the Open Internet Order took pains to create an investment climate that is significantly better than carriers experienced during the last build-out boom,” he said. “That’s why our Open Internet Order explicitly states that there will be no retail rate regulation. The economic underpinnings for competitive infrastructure investment have never been better.

“My position on this matter was shaped by a few irrefutable broadband truths:

  • You can’t say you’re for broadband — but endorse limits on who can offer it,
  • You can’t follow Congress’ explicit instruction to “remove barriers” to infrastructure investment — but endorse barriers to infrastructure investment,
  • And you can’t say you’re for competition — but deny local elected officials the right to offer competitive choices.”

See Wheeler’s speech at 53-minute mark in the Broadband Communities 2015 Summit video below or read his full comments at FCC.gov.