Trade Group Incompas Sues FCC Over Net Neutrality Repeal

The trade group Incompas is joining the roster of net neutrality advocates suing the Federal Communications Commission over its decision to repeal the open internet rules.

The repeal "departed from every previous network neutrality order in addition to longstanding bipartisan FCC policy," Incompas writes in papers filed Monday with the Circuit Court of Appeals in Washington, D.C.

Incompas, which counts Google, Netflix and Amazon among is members, is seeking a court order vacating the FCC's decision to repeal the Obama-era net neutrality rules. Those regulations, approved in 2015, prohibited broadband providers from blocking or throttling traffic, and from charging companies higher fees for prioritized delivery.

In December, the Republican-led FCC voted 3-2 to revoke the former rules. Chairman Ajit Pai, who backed the repeal, says the Obama-era regulations were too heavy-handed, and depressed investment. But consumer advocates and other proponents say the rules are necessary to prevent broadband carriers like Comcast and AT&T from censoring sites or discriminating against over-the-top online video providers.



The repeal won't take effect until after the Office of Management and Budget approves the FCC's order. It's not yet known when that will occur.

Incompas says in its new court papers that the FCC wrongly denied a request to consider prior reports regarding broadband providers. Specifically, Incompas says the FCC should have incorporated confidential information prepared in conjunction with three recent mergers -- Charter's acquisition of Time Warner Cable, AT&T's acquisition of DirecTV and Comcast's acquisition of NBC Universal -- into the repeal proceeding.

The reports prepared by the FCC and Department of Justice, in conjunction with those mergers, found that "broadband internet access providers representing nearly 70% of residential broadband internet access subscribers had the incentive and ability to engage in behavior that threatened an open internet," Incompas says.

The trade group argues that those conclusions weigh against the FCC's decision to repeal the rules. The Silicon Valley lobbying group Internet Association and the Entertainment Software Association are also suing the FCC over the repeal, as are 23 attorneys general, consumer advocacy groups and several tech companies including Mozilla, Etsy and Kickstarter.

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