Internet companies’ seminal argument against common carrier rules slams glow in the dark prophylactic

by Steve Blum • , , ,

The telecoms companies and associated lobbyists that are challenging the Federal Communication Commission’s common carrier rules for the Internet did the completely expected and asked an appeals court to put the new regulations on hold. The move followed the FCC’s completely expected denial of a similar request.

The arguments are pretty much the same. Again, the companies and lobbyists are pulling a public relations stunt by saying hey, it’s okay if the stuff about no blocking goes into effect because we’re such high minded corporate citizens that we’re doing it anyway. But make no mistake: they want those rules thrown out with the rest.

The big difference in this latest filing is in the frothiness of the prose – apparently, [entertainment value counts when you’re talking to federal judges]()…

Wholly apart from the FCC’s substantive errors, the Order is independently unlawful because the FCC — in its headlong rush to implement this regulatory sea change at the President’s urging — committed a string of glow-in-the-dark [Administrative Procedure Act] violations, any one of which would suffice to invalidate the Order. The FCC’s original proposal to adopt a handful of prophylactic rules gave no notice that the FCC intended to craft out of whole cloth a “Title II tailored for the 21st Century”, to rewrite its rules concerning mobile services, to redefine fundamentally the broadband service that it reclassified, or to adopt an amorphous “Standard for Internet Conduct,” which gives the agency unfettered discretion to regulate new and innovative offerings. And the FCC abandoned its own longstanding classification decisions without grappling with either its prior legal conclusions and factual findings or the billions of dollars invested in reliance on prior policy.

There’s a little less than a month to go before the new rules are due to take effect. Plenty of time for an equally pithy come back from the court.

Click here for the short version of the motion for stay.

Click here to download all 700-plus pages of the motion for stay, and save the $9 the federal appeals court would charge you for it. It’s 72 MB but don’t worry, your ISP wouldn’t dare block or throttle it.