Hoping The Third Time's The Charm, ISPs Urge Supreme Court To Kill Net Neutrality

Legal Issues

from the one-more-time-around dept

We’ve noted how large ISPs like Comcast, AT&T and Verizon are covering all their bases in their endless quest to kill popular (some would say necessary) net neutrality protections. They’ve successfully lobbied FCC boss Ajit Pai to vote to kill the existing rules later this year, despite the massive public opposition to that plan. But they’re also lobbying Congress to draft a new net neutrality law they publicly insist will solve everything, while privately hoping you’re too stupid to realize will be entirely written by their lawyers and lobbyists — ensuring it has so many loopholes as to be effectively useless.

In case those first two options don’t work, large ISPs are also — for the third time in as many years — looking for the Supreme Court’s help. ISPs lost their first attempt to overturn the Title II net neutrality order last year when the US Court of Appeals for the District of Columbia shot down their complaints (which included insisting that net neutrality rules violated their First Amendment rights). ISPs lost again earlier this year when the courts shot down their en banc appeal.

Hoping the third time’s the charm, lobbyists for Comcast, AT&T and other ISPs have lobbied the Supreme Court to overturn the rules, hoping to kill net neutrality protections both today and for the foreseeable future. Like previous complaints, AT&T’s petition to the court (pdf) trots out a parade of theoretical horribles, doubling down on numerous, previously debunked industry claims (like these modest net neutrality rules somehow utterly devastated sector investment, a claim repeatedly debunked by countless journalists and objective economists).

AT&T’s petition is a greatest hits of its previous, false claims, including the claim that zero rating (imposing usage caps then letting a company’s own content bypass those caps while still penalizing competitors) is somehow “pro consumer”:

“It is clear, however, that such open-ended Title II regulation confers expansive authority on the FCC to regulate virtually anything a broadband ISP does and enables any individual or company to file a complaint alleging that any broadband innovation is in some sense ?unfair? or ?unreasonable.? Pet. App. 696a-700a (? 455). The FCC has said, for example, that it could forbid a broadband provider to ?zero-rat[e]? certain content (i.e., exempt it from monthly data allowances) on the theory that doing so is ?unfair? to other content providers, id. at 343a-49a (?? 151-153), even though zero-rating is equivalent to bundled discounts and is thus strongly pro-consumer.”

As we’ve noted here quite frequently, that’s all bullshit. AT&T, like other ISPs, has abused the lack of competition in the broadband space by imposing arbitrary and unnecessary usage caps. From there, ISPs like Comcast and AT&T have exempted their own services from these caps while penalizing competitors. Even then, the FCC didn’t explicitly ban this practice (as is the case in Chile, the Netherlands, India, Canada and elsewhere), instead stating they’d only act on a “case by case basis.” The FCC was just preparing to declare some of this behavior anti-competitive when Ajit Pai and Donald Trump arrived on the scene.

The nation’s mega ISPs all petitioned the Court to declare that the FCC exceeded its statutory authority by reclassifying broadband as a common carrier service. If the Supreme Court obliges, that would prevent any future FCC Commissioners from revisiting the issue, leaving the whole net neutrality issue up to a cash-compromised and utterly dysfunctional Congress to solve (good luck with that). Of course the Supreme Court may decide Pai’s planned assault on the rules makes hearing the case duplicative, dashing ISP dreams of ISP lawyers hoping to kill even the faintest specter of meaningful net neutrality rules, permanently.

Since AT&T lawyers are also busy in court trying to undermine the FTC’s oversight of broadband providers as well (or in fact any company with even a modest “common carrier” component), the goal here is pretty straight forward: gutting all meaningful government oversight of one of the least competitive industries in America. Should this multi-pronged, bullshit-laden effort prove successful, the laundry list of problems we’ve had with companies like Comcast are going to seem arguably quaint in a few years.

Filed Under: fcc, net neutrality, supreme court
Companies: at&t