AT&T Joins Cable, Telecom Groups in Net Neutrality Litigation

Josh LongCable, wireless and telecom groups on Tuesday inundated a federal appeals court in the nation’s capital with petitions that seek to overturn Federal Communications Commission Internet regulations that are favored by the Obama administration.

The filings in the D.C. Circuit Court marked what is likely to be a more-than-year-long battle over whether FCC Chairman Tom Wheeler and his Democratic colleagues overstepped their authority in seeking to preserve unfettered access to the Internet. The petitions were filed by AT&T and a number of trade organizations, including the American Cable Association, National Cable & Telecommunications Association (NCTA), CTIA-The Wireless Association and USTelecom.

The various groups argue the FCC’s 400-page Open Internet Order violates federal laws and regulations, including the Communications Act of 1934.

“As Chairman Wheeler has said, we are confident the FCC’s new Open Internet rules will be upheld by the courts, ensuring enforceable protections for consumers and innovators online,” the FCC said.

All of the petitions were filed Tuesday in Washington, D.C., where a panel of judges overturned previous FCC Internet regulations in January 2014 following a successful challenge by Verizon.

Publication of Wheeler’s regulations in the Federal Register prompted the litigation. They are set to take effect on June 12 unless a federal court intervenes.

“If there’s any surprise here – and these lawsuits were as likely as spring showers – it’s that the carriers let their lobbying organizations due their work for them,” said Rich Karpinski 451 Research analyst, commenting on a CNET story.

The lawsuits pit Wheeler’s FCC against some powerful trade groups led by former communications regulators. Michael Powell, the president and chief executive of NCTA, chaired the FCC for more than four years under President George W. Bush.

NCTA has retained as its counsel high-powered lawyers who have argued dozens of cases before the U.S. Supreme Court: former U.S. Solicitor General Theodore B. Olson and former U.S. Assistant to the Solicitor General Miguel A. Estrada.

The FCC will likely devote much of its legal defense on its decisions to reclassify broadband service as a Title II telecommunications service under the Communications Act of 1934.

President Obama in November voiced his support for Title II regulation, later prompting Republicans on Capitol Hill to question whether his administration unduly influenced the FCC. Wheeler has denied capitulating to the president, citing his realization over the summer that an initial Net Neutrality proposal being considered by the FCC wasn’t the right approach.

“This appeal is not about Net neutrality,” Powell said, “but the FCC’s unnecessary …

… action to apply outdated utility style regulation to the most innovative network in our history.”

The wireless industry, led by former FCC commissioner Meredith Attwell Baker, also is challenging the FCC’s regulations, which for the first time subject both wireline and wireless broadband services to a number of Internet regulations, including prohibitions on blocking, throttling or prioritizing Web traffic.

A previous FCC had largely refrained from subjecting wireless broadband to Internet regulations.

“Instead of promoting greater industry investment in the connected world of tomorrow, the FCC opted to resuscitate a command-and-control regulatory regime, including a process where innovators must first seek permission from the FCC before rolling out new services,” said Baker, president and CEO of CTIA-The Wireless Association. “In so doing, the FCC usurped the role of Congress and departed from a bipartisan mobile-specific framework to create a new intrusive regulatory framework.”

Last month, weeks before the FCC had even published its order, USTelecom and Alamo Broadband filed petitions for review in two separate federal courts. The petitions ended up in the D.C. Circuit Court, according to an FCC official.  USTelecom filed a supplement petition on Tuesday, noting it was encouraged to do so by the D.C. Circuit Court “in circumstances such as those here where the triggering event for petitioning for review is unclear.”

“Our appeal is not focused on challenging the objectives articulated by the President, but instead the unjustifiable shift backward to common carrier regulation after more than a decade of significantly expanded broadband access and services for consumers under light-touch regulation,” USTelecom President Walter McCormick said.

In January 2014, a panel of judges in the D.C. Circuit Court largely overturned Internet regulations that were adopted by Wheeler’s predecessor, Julius Genachowski.

It’s possible the pending Net neutrality litigation will be heard outside Washington, D.C. The Judicial Panel on Multidistrict Litigation conducts a lottery to determine the venue if petitions challenging the same order are filed in two or more federal circuit courts of appeals, according to the FCC’s Office of General Counsel.

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