• by Wendy Davis  @wendyndavis, October 12, 2018

The Federal Communications Commission is asking an appellate court to uphold the agency's decision to revoke a set of net neutrality rules that were passed during the Obama era.

In papers filed late Thursday, the FCC argues that it has the discretion to reverse its prior rulings, as long as it provides reasons for doing so. The agency adds that that the repeal need not show better reasons for the new policy than the old one.

The repeal order “embodies the Commission’s considered judgment that restoring the prior, longstanding light-touch framework for broadband regulation reflects the best reading of the Communications Act,” the agency argues.

The Obama-era net neutrality order, passed by the Federal Communications Commission in 2015, classified broadband as a telecommunications service, subject to the same common carrier rules as other utilities. At the time, the agency imposed several common carrier rules on broadband providers -- including bans on blocking or throttling online traffic and on charging companies higher fees for prioritized delivery. Those regulations marked a culmination of prior FCC broadband policy directives dating back to 2005.

Last December, the FCC voted 3-2 to revoke the net neutrality rules and reclassify broadband as an information service. That order replaced the prior regulations with a "transparency" rule that requires Internet service providers to disclose their traffic management practices. The December order also attempted to ban states from passing or enforcing their own net neutrality rules.

Current FCC Commissioner Ajit Pai, who shepherded the repeal, says the Obama-era rules were “heavy handed” and depressed investment. But advocacy groups and Silicon Valley companies argue that the rules were necessary to prevent broadband providers from limiting consumers' ability to access streaming video, search engines and other online services and content.

A large coalition of tech companies, consumer advocacy groups and state attorneys general recently asked the D.C. Circuit Court of Appeals to vacate the December order and reinstate the 2015 rules. They say the agency lacked a good reason to repeal the 2015 rules, and that the repeal runs counter to directives that date to 2005, when the FCC first issued open internet policy principles.

The FCC counters that its decision to classify broadband as an “information” service is supported by the Communications Act and “The nature of broadband service, both as perceived by consumers and as offered by providers.”

The agency adds that it is entitled to reverse its prior decision to characterize broadband as a utility, arguing that Supreme Court precedent allows agencies to revise their approach. 

“An agency is free to change its interpretation of an ambiguous statute so long as it 'adequately explains the reasons for a reversal of policy,'” the FCC argues, quoting from a 2005 Supreme Court case about broadband. The Supreme Court said in that case that the Communications Act was ambiguous about whether cable broadband is a “telecommunications” service.

The agency also is asking the appellate court to uphold a ban on state net neutrality laws -- like the one passed last month in California.

“Broadband is a predominantly interstate service and should therefore be governed by uniform federal regulation rather than a patchwork of separate state and local requirements,” the FCC contends.

Broadband providers are expected to file separate arguments with the appellate court by next week.