• by Wendy Davis  @wendyndavis, September 12, 2024

The Federal Communications Commission is asking a federal appellate court to uphold its new open internet order, which prohibits broadband providers from blocking or throttling traffic, and charging higher fees for prioritized delivery.

That order, passed earlier this year, reclassified broadband as a “telecommunications” service -- a move that allowed the FCC to impose common carrier rules comparable to those that govern telephone providers. During the Trump era, the FCC classified broadband as an “information” service; information services are not subject to common carrier rules.

In papers filed Wednesday with the 6th Circuit Court of Appeals, the agency argues broadband “neatly fits” the Congress's definition of telecommunications, as spelled out in the Telecommunications Act of 1996. That statute defines telecommunications as the transmission of information of the user's choosing, without change in the form or content.

“The most natural reading of the Communications Act, as applied to how broadband operates and is offered today, is that broadband offers telecommunications service,” the FCC contends.

The agency goes on to analogize broadband carriers to delivery companies like DoorDash and GrubHub.

“Just as those companies pick up and deliver customers’ orders from restaurants, broadband providers offer transmission to and from user-selected websites and applications,” the FCC argues. “These companies do not make or alter the food they deliver.”

The FCC's papers come in response to a challenge to the open internet order brought by lobbying groups including USTelecom--The Broadband Association, NCTA--The Internet & Television Association and CTIA--The Wireless Association.

They say the FCC lacked authority to issue the order, arguing that the decision to categorize broadband as a telecommunications service is the type of major policy move that requires unambiguous authorization by Congress.

Earlier this year, 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 succeed with their legal arguments.

The FCC counters in its new papers that the recent decision to categorize broadband as a telecommunications service is consistent with legislators' intentions.

“The Congress that passed the 1996 Act would not find it surprising for broadband to be regulated as telecommunications service,” the agency says.

Advocacy groups including Free Press and Public, which support the net neutrality rules, are seeking to intervene in the lawsuit. On Wednesday, those groups filed a proposed brief in defense of the regulations.

Net neutrality proponents have argued for years that the regulations will help prevent cable companies and telecoms from thwarting competition from streaming video companies, as well as from censoring material.

But cable companies and telecoms counter that classifying broadband telecommunications service will discourage innovation, and also pave the way for a host of additional restrictions -- including rules that would regulate prices.

Several states, including California, currently have their own version of net neutrality laws.

The California measure not only prohibits broadband providers from blocking or throttling traffic, and charging higher fees for fast lane service, but also bars providers from exempting their own video streams from consumers' data caps.

The 9th Circuit Court of Appeals upheld that law in 2022.