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Tuesday, May 21, 2024 | Back issues
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Telecoms Take Fight Against ‘Open Internet’ to DC Circuit

WASHINGTON (CN) - Arguments stretched for four hours Friday as the D.C. Circuit considered the landmark case implicating federal regulation of the Internet.

Brought by the U.S. Telecom Association, the action fights changes to Federal Communications Commission rules that classify the Internet as a common carrier, thereby making it a public utility.

This determination would restrict providers from slowing down or speeding up service to certain websites, and would treat them differently than cable companies. The U.S. Telecom Association and other organizations intervening on its behalf have raised First Amendment objections to this restriction, while the FCC has portrayed it as necessary to preserving an open Internet.

But the First Amendment was just one of the topics broached during oral arguments, which lasted more than three hours Friday morning and were split into four distinct parts.

The U.S. Telecom Association, FCC and a host of interveners on the behalf of each argued about the FCC's reclassification of mobile broadband as a common carrier, the process it used to get there, and whether that process unfairly and intentionally bypassed businesses with the right to comment on the changes.

Arguing on behalf of the U.S. Telecom Association, Pete Keisler opened his arguments Friday by saying the Internet is different than traditional public utilities because its providers store data, rather than just transmit information.

Judge David Tatel pressed Keisler, however, on why the Supreme Court's 2005 decision in U.S. Telecom Association v. Brand X is not relevant to this case. The Brand X decision upheld an FCC rule determining that Internet service providers did not provide a telecommunications service.

Jonathan Sallet, who argued for the FCC in the first segment of the day, agreed with Tatel and said the FCC's regulations are "not new."

Later in the hearing, Keisler said the FCC created a "Frankenstein network" when it changed a rule to define mobile broadband in the same way it defines telephone networks. He said it did this by simply deleting without warning the word "call" from a rule that said it could regulate networks that let people call one another.

This effectively allowed the agency to regulate the mobile broadband network as it did the public switch network Congress expressly permitted it to regulate. As a result, the FCC treated mobile broadband the same way it treated the old network that connects phones, Keisler added.

"Congress didn't say 'a' public switch network ... it said 'the public switch network' because it had one particular network in mind," Keisler told the court.

Keisler also claimed the agency did not give the business community proper notice of its rules change, something another FCC attorney, Jacob Lewis, denied.

Lewis said the notice was brief but complete in warning the public the FCC was considering changing its definition of mobile broadband. He wondered whether Keisler's objections meant the FCC had to write its notices of rules changes for "a second grader" to be able to understand.

"It really seems like it s putting the burden on the agency to walk the parties by the nose through these issues," Lewis told the court.

Lewis seemed thrown during this section of arguments when Tatel asked how flip phones relate to the agency's new mobile regulations. After all, Tatel said, these phones can only access the traditional phone network and not the Internet, meaning the two networks cannot be interconnected as the FCC claims.

Lewis argued all networks contain subnetworks like this, and that even someone like Tatel with only a flip phone could access a significant portion of people connected to the array.

Tatel drew laughs from the crowded courtroom when he made a point of noting on the record that he owns a smartphone.

Another substantive point of disagreement during the arguments was on Judge Stephen Williams' question of whether it is proper for the FCC to prevent providers from practicing "paid prioritization," where providers allow for faster speeds to certain websites or applications.

Williams seemed to suggest in his questions the providers should be free to ask people to pay more to get more, but Sallet argued banning the practice was necessary to keep the Internet open.

The question also seeped into the First Amendment discussion that came toward the end of the arguments.

Brett Shumate, who argued on the U.S. Telecom Association's side, said providers should be able to choose which content they distribute and how quickly they do so.

"The First Amendment has always limited the government's ability to regulate the dissemination of content," Shumate said.

Lewis disagreed, pointing out the women who used to run manual telephone switch boards could not decide which calls they wanted to connect.

The judges on the panel seemed to side somewhat near the FCC's position on this matter. Judge Sri Srinivasan pointed out that if a provider wanted to sell a family-friendly network, the FCC could elect to exempt it from the regulations.

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