Civic Register
| 10.3.17

AT&T Petitions SCOTUS To Kill Net Neutrality

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What’s the story?

Internet Service Providers (ISPs) like Verizon, AT&T, and Comcast are attacking net neutrality on all fronts—most recently, with a petition to the Supreme Court.

AT&T’s petition, as the blog TechDirt explained, "trots out a parade of theoretical horribles, doubling down on numerous, previously debunked industry claims (like these modest net neutrality rules somehow utterly devastated sector investment, a claim repeatedly debunked by countless journalists and objective economists)."

Net neutrality rules ban ISPs from blocking or throttling certain websites in favor of other content.

This is the third time is as many years that ISPs have taken their net neutrality battle to the courts. In June 2016, the D.C. Court of Appeals upheld the FCC’s open Internet Order, dismissing the ISPs’ complaints that net neutrality violated their First Amendment rights. The ISPs appealed the ruling, and requested an en banc (full judge) hearing, but the court refused the request.

Now, AT&T is arguing to SCOTUS that the FCC exceeded its authority when it passed net neutrality rules that re-classified broadband as a utility service.

Why does it matter?

In 2015, the FCC – led by Obama-appointee Tom Wheeler – classified broadband as a "telecommunications service" and ISPs as “common carriers” under Title II of the Communications Act. ISPs classified as Title II public utilities are prohibited from blocking or slowing certain websites or charging additional fees to visit other sites.

"AT&T now argues to the Supreme Court,"MediaPost wrote, “that the Communications Act requires the FCC to treat broadband as an ‘information’ service, which isn't subject to utility-style regulations.”

In its petition, AT&T claimed:

"Any broadband Internet access service - fixed or mobile - is an information service and is thus immune from common carrier regulation under the general definitional provisions of the Communications Act."

AT&T also argued that imposing data caps, then allowing a company’s own content to bypass those caps, is pro-consumer. The practice is known as "zero rating," and AT&T explained in the petition that the FCC has “said it could forbid a broadband provider to ‘zero-rat[e]’ certain content (i.e., exempt it from monthly data allowances) on the theory that doing so is ‘unfair’ to other content providers.”

"Even though," the company continues, “zero-rating is equivalent to bundled discounts and is thus strongly pro-consumer."

The pro-net neutrality blog, TechDirt, wrote in response that "AT&T, like other ISPs, has abused the lack of competition in the broadband space by imposing arbitrary and unnecessary usage caps. From there, ISPs like Comcast and AT&T have exempted their own services from these caps while penalizing competitors."

Ajit Pai, whom the Senate just re-confirmed to head the FCC, agrees with AT&T; the Republican chairman recently proposed rolling back the Article II rules and re-classifying broadband as an information service.

But Libertarian think tank TechFreedom, which opposes net neutrality, is concerned the next FCC chairman may overturn Pai’s expected rollback. In a friend-of-the-court briefing, it urged the Supreme Court to take the case and finally settle the issue.

"Yes, we expect the [current Republican] FCC to undo the 2015 Order," the group wrote, “but that won’t stop the next Democratic FCC from redoing it.”

TechFreedom continued, arguing that:

"Without legislation, it’s up to the Court to finally decide whether Congress really meant it in 1996 when it said the Internet should remain ‘unfettered by Federal or State regulation.’"

What do you think?

Is it up to SCOTUS to finally decide on net neutrality? Or should Congress, and the FCC, resolve the matter? Hit the Take Action button, tell your reps, then comment below.

—Josh Herman

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(Photo Credit: jetcityimage / iStockphoto)