ISPs: Net neutrality rules are illegal because Internet access uses computers

"Oh, they have the Internet on computers now."

20th Century Fox

Internet service providers yesterday filed a 95-page brief outlining their case that the Federal Communications Commission’s new net neutrality rules should be overturned.

One of the central arguments is that the FCC cannot impose common carrier rules on Internet access because it can’t be defined as a “telecommunications” service under Title II of the Communications Act. The ISPs argued that Internet access must be treated as a more lightly regulated “information service” because it involves “computer processing.”

“No matter how many computer-mediated features the FCC may sweep under the rug, the inescapable core of Internet access is a service that uses computer processing to enable consumers to ‘retrieve files from the World Wide Web, and browse their contents’ and, thus, ‘offers the ‘capability for... acquiring,... retrieving [and] utilizing... information.’ Under the straightforward statutory definition, an ‘offering’ of that ‘capability’ is an information service," the ISPs wrote.

Further Reading

The fact that Internet service providers offer e-mail accounts and cloud storage further proves the point that Internet access is an information service, according to this argument. The brief was filed in the US Court of Appeals for the District of Columbia Circuit.

“According to the [FCC’s Open Internet] Order, changes to consumer conduct and provider marketing establish that Internet access now consists of a ‘transmission link’ that is separate from information-service functions such as e-mail and cloud storage,” the ISPs wrote. “As the Order admits, broadband providers ‘still provide various Internet applications, including e-mail, online storage, and customized homepages, in addition to newer services such as music streaming and instant messaging. Even assuming, as the FCC alleges, that there has been a change in how consumers use those functions… those facts prove nothing about how consumers view what providers 'offer.'”

The brief was filed by the United States Telecom Association, the National Cable & Telecommunications Association, CTIA-The Wireless Association, the American Cable Association, the Wireless Internet Service Providers Association, AT&T, and CenturyLink.

AT&T, CenturyLink, CTIA, and USTelecom have claimed that the FCC’s net neutrality order violates their First and Fifth Amendment rights. But not all of the petitioners are making the Constitutional argument, and yesterday’s joint brief filed by all of them leaves it out.

The FCC order that ISPs object to reclassified broadband Internet access as a telecommunications service. The FCC pointed to the Communications Act definition of telecommunications as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”

Broadband service offered by Comcast, Verizon, and others “transmits information of the user’s choosing between points specified by the user,” the FCC argued.

Whether Internet providers should be classified as common carriers has figured prominently in the net neutrality debate for years. The FCC imposed net neutrality rules in 2010 without reclassifying the providers. Verizon sued and got the rules overturned last year, with an appeals court saying the FCC erred by imposing common carrier-style rules without first classifying the providers as common carriers. That contributed to the FCC's decision this year to reclassify.

Broadband providers initially said they were willing to accept net neutrality rules—including a ban on blocking and throttling content and a ban on paid prioritization—as long as they could avoid the common carrier classification.

But in yesterday’s filing, the providers asked the court to vacate the FCC’s entire order, net neutrality rules and all.

Curiously, the Internet providers also argued that the FCC failed by not reclassifying a portion of the Internet providers’ networks as telecommunications.

The FCC asserted authority over interconnection disputes between Internet providers and companies that connect to their networks, such as Netflix or network operators that handle traffic on behalf of Netflix-like services. The FCC reasoned that it can regulate this exchange of traffic because it affects the quality of retail broadband access, which was reclassified as a common carrier service.

“Regulation of Internet Interconnection under Title II without reclassifying that service violates” the decision in the Verizon case, which “held that broadband providers ‘furnish a service’ to edge providers separate from the service they provide to end-user customers,” the ISPs’ brief said. “The FCC’s one-sided application of Title II to Internet interconnection is a deliberate attempt to avoid regulating other entities—such as Internet backbone providers and large edge providers, including Google—that provide similar interconnection but do not offer retail broadband service.” (The ISPs here are distinguishing between Google’s Web services and its fiber Internet access service.)

Companies trying to send traffic into broadband providers’ networks can file complaints alleging that ISPs’ rates and practices aren’t just or reasonable. But ISPs complained that they won't be able to file such complaints themselves.

“Conversely, if an Internet network or edge provider refused to interconnect with a broadband provider on ‘just and reasonable’ terms and conditions (and thus caused harm to retail broadband customers), the broadband provider would have no recourse because the Internet network and edge providers remain private carriers for these purposes,” the ISPs’ brief said.