from the when-at-first-you-don't-succeed,-cry-some-more dept
Given the en banc request process limits the core argument to fifteen pages, the National Cable & Telecommunications Association (NCTA, pdf), the American Cable Association (ACA), the CTIA—The Wireless Association (pdf), and the United States Telecom Association (USTelecom, pdf) all filed slightly different, predominately flimsy legal arguments. Cable providers argued the FCC didn't properly justify the need for new rules; wireless providers tried to argue the FCC can't technically apply such rules to wireless; the telcos tried to argue Congress never intended to give the FCC Title II authority over broadband.
All of these claims have been thoroughly debunked in some fashion over the last ten years. For example, Alamo Broadband, filed its own request (pdf) trying to claim that net neutrality rules violate an ISPs' free speech rights, a claim that has all but been laughed out of court previously. In a new blog post, the cable industry tries to argue they had no choice but to keep wasting everybody's time:
"We don’t celebrate this petition, but we believe this action is necessary to correct unlawful action by the FCC. We aren’t challenging the specific net neutrality protections – as we’ve explained repeatedly, we have long supported the net neutrality principles embodied in the FCC’s 2010 order that could be enforceable under the Commission’s traditional light touch approach to internet regulation.Those would be the same 2010 rules that had so many loopholes as to be useless, and didn't cover wireless. The NCTA then trots out the old, stale canard that the rules are hurting network investment, something the facts (at least those outside the halls of conflicted, for-hire think tanks) have never supported:
"Because the FCC Order was such a monumental departure from the FCC’s successful tenure of overseeing broadband internet networks that have seen tremendous investment, expansion and innovation, we seek rehearing of these critical issues."In other words, we liked it a lot better when the FCC only pretended to do its job, leaving us alone to take predatory advantage of the near total market failure in countless broadband markets. The real concern for cable, phone and wireless companies now is the FCC's plan to use its restored Title II authority to pass some relatively basic privacy protections for broadband service. While the industry and some press outlets will tell you these rules are an incredible over-reach by the FCC, all they really require is that ISPs are transparent about what's collected, and provide consumers with working opt out tools.
As we noted last week, the chance of an expanded appeal being granted is slim, but the en banc approach is seen as slightly less futile than an appeal to the under-staffed Supreme Court. Still, the best option for ISPs looking to gut net neutrality? Elect a President that will stock the FCC with the kind of revolving door regulators who simply won't bother to enforce the rules. That's more likely under Trump, but with AT&T's top lobbyist supporting Clinton, real net neutrality protection shouldn't be seen as a given under her watch, either. Especially if dingo-esque Tom Wheeler gets replaced.