Industry Responds in Advance to National Day of Protest on Net Neutrality

USTelecom and others, meanwhile, asked the Supreme Court to extend a July 31 deadline to Sept. 28 for filing cert petitions seeking review of the U.S. Court of Appeals for the D.C. Circuit's decision upholding the FCC's 2015 Title II net neutrality order. The extension is justified because the current commission's rulemaking "has the potential to moot applicants' challenges to the Title II order," said their application to Chief Justice John Roberts.

“The Trump FCC -- like the rest of this administration -- is doing everything in its power to serve corporations and harm the rest of us,” Free Press said in a Tuesday news release on the protest. Supporters of the 2015 rules acknowledged when the protest was scheduled that it likely will have little effect on the Republican-controlled FCC (see 1706060056).

TechFreedom President Berin Szoka told reporters the protests will have zero effect. Supporters of the current rules will make policy arguments, more properly made before Congress, he said. The question before the FCC is “does it have the legal authority to issue these rules at all,” he said. “If the answer is 'no' … there will be no FCC rules,” Szoka said. He's hopeful Congress will legislate, but that won’t be easy. “It also has to happen,” he said. Otherwise “we might be having the same call in another decade. We will if there isn’t legislation.”

AT&T is joining the day of action (DOA) to "correct the record" because it too supports an open Internet, said Senior Executive Vice President Bob Quinn, who talked to reporters and wrote a blog post. AT&T isn't working with DOA organizers, he said, but it's running ads (including in Communications Daily) backing open internet rules and a congressional solution. Net neutrality is about "no blocking, no discriminatory throttling, no censorship" and "transparency," and ought to apply across the internet, Quinn said, calling the rules "uncontroversial." AT&T is "willing to have a discussion" about paid prioritization, but it opposes an outright ban and has supported a case-by-case approach to address any conduct that harms competition or consumers, he said.

Lawmakers need to give FCC authority to enforce rules and stop the "ping-pong" between the political parties, and between the commission and courts, over broadband classification, Quinn said. "We're going to call on people to notify Congress that it's time to get some bipartisan legislation that makes net neutrality permanent so that we're not bouncing back and forth between the FCC and the judicial system," he said. "Let's end this." Absent legislation, AT&T backs enforceable rules under Communications Act Title I, though whether they would be upheld in court could depend on how they're framed, he said.

Under the current politics, with Congress unlikely to act, a new net neutrality debate will happen every time a regime changes, said Larry Downes, senior fellow at the Georgetown Center for Business and Public Policy, at the ITIF event. “For now, everyone is guaranteed to lose this fight and repeatedly.” Downes said the best course is to do what the NPRM proposes. The NPRM would “undo the Title II sleight of hand, restore the definition of public-switched telephone network to something that passes the sniff test and eliminate the star chamber that was created by the general conduct rule,” he said. Once the NPRM is approved, the world goes back to the pre-2015 status quo with the FTC protecting consumers. That’s not a perfect solution, but “on balance it’s likely to be the one that causes the least harm,” Downes said.

There’s no “clear definition” of what net neutrality is or movement toward consensus, said Nicol Turner-Lee, fellow at Brookings’ Center for Technology Innovation, at the ITIF event. Turner-Lee said it’s a little like an argument she has had with her sister for years over a size 4 dress, which would fit neither. “We just can’t let it go,” she said. “There’s no way to negotiate through that.” She said only Congress can end the fight over net neutrality.

Scott Wallsten, president of the Technology Policy Institute, said the next time a Democrat is elected president, the FCC probably will reclassify broadband as a Title II service once again. “There’s no stability,” Wallsten said. “We need to do something to deal with this instability.” That millions of comments have been filed shows why Congress should be engaged, he said. As an expert agency, the FCC is supposed to consider individual comments, he said. “They’re not supposed to consider how many times that argument is made,” Wallsten said. The FCC as an "agency is not meant to aggregate societal preferences,” he said. “That’s what legislatures do.”

Wallsten, a former FCC economist, said it’s noteworthy that carriers fought common-carrier regulation. “It’s good to be regulated,” he said. “You end up very profitable. You’re protected from entry.”

Groups led by the U.S. Chamber of Commerce filed a letter at the FCC backing an end to reclassification. “It is possible to have a free and open internet without treating broadband like a public utility under Title II of the rotary-phone era Communications Act of 1934,” the groups said. The Telecommunications Industry Association, Citizens Against Government Waste, National Association of Manufacturers and Competitive Enterprise Association also signed.

Little more can be learned about net neutrality, said Gus Hurwitz, co-director of the Space, Cyber and Telecom Law Program at the University of Nebraska College of Law, in a filing Monday in docket 17-108. "The present proceeding affords the Commission an opportunity to correct the factual and analytic errors made in the 2015 Order, and to update that Order based upon data that has become available as a result of its enactment.”