• by Wendy Davis  @wendyndavis, August 13, 2024

A coalition of broadband industry organizations on Monday asked a federal appellate court to scuttle the Federal Communications Commission's net neutrality rules.

The industry groups contend that the FCC lacked authority to issue the rules, arguing that Congress never empowered the agency to regulate internet traffic.

“In its 'Open Internet' Order, the Federal Communications Commission has asserted total authority over how Americans access the internet,” the organizations wrote in a brief filed with the 6th Circuit Court of Appeals.

“The Commission must point to clear congressional authorization for that claim of authority. It cannot do so,” groups including USTelecom--The Broadband Association, NCTA--The Internet & Television Association and CTIA--The Wireless Association add.

They are challenging the FCC's “Safeguarding and Security the Open Internet” order, passed earlier this year by a 3-2 vote. That order reclassified broadband as a “Title II” utility service and imposed some common carrier rules on providers -- including bans on blocking or throttling traffic, and charging higher fees for prioritized delivery.

The Obama-era FCC passed similar rules in 2015, but they were repealed three years later during the Trump administration.

Earlier this month, a three-judge panel of the 6th Circuit Court of Appeals temporarily blocked the new rules from going into effect, ruling that the broadband providers are likely to prevail in their effort to vacate the rules.

The industry groups are now asking the 6th Circuit to permanently set aside the FCC's order.

The groups argue that a decision to classify broadband as a utility is the type of major policy move that requires “clear” authorization by Congress. The organizations call attention in their papers to a 2022 Supreme Court ruling that curtailed federal agencies' ability to issue regulations on “major questions” of policy. The court in that case struck down environmental regulations that had been passed by the Environmental Protection Agency.

The broadband lobby also says the net neutrality rules should be struck down as “arbitrary and capricious.”

“The Order is the paradigmatic solution in search of a problem,” the groups write.

They add since the Obama-era rules were repealed in 2018, “the broadband industry has thrived, reaching more consumers at faster speeds and lower prices than ever before.”

Net neutrality supporters have long argued that net neutrality rules will help prevent cable companies and telecoms from thwarting potential competitors, such as streaming video companies, as well as to prevent broadband providers from limiting consumers' ability to use online services.

For their part, cable companies and telecoms claim that classifying broadband as a Title II service will discourage innovation, and also pave the way for a host of additional restrictions -- including rules that would regulate prices.

After the FCC revoked the Obama-era rules, several states passed their own versions of net neutrality. California, for example, enacted a law that prohibits broadband providers from blocking or throttling traffic, charging higher fees for fast-lane service, and exempting their own video streams from consumers' data caps.

That law was upheld in 2022 by the 9th Circuit Court of Appeals.