CenturyLink Joins Appeals of Net Neutrality Order

Trade associations had been expected to take the lead in the appeals (see 1503300055). AT&T and CenturyLink wouldn't say why they chose to file their own suits. There are advantages to filing individually, said Andrew Schwartzman, senior counselor at Georgetown University's Institute for Public Representation. The court is likely to require the various petitioners to collaborate on one of two briefs, so by filing, “a petitioner can have a say in deciding which issues are presented and how they are argued.” If other parties don't want to appeal a ruling, CenturyLink would have that option, he said. CenturyLink also may be able to obtain some time for itself in the oral argument, Schwartzman said. Other telecom attorneys agreed but said the desire to be part of the high-profile case could also be a factor.

CenturyLink, in a statement, said it “invests hundreds of millions of dollars a year to build, maintain and update an open Internet network and does not block or degrade lawful content. However, the FCC has chosen to subjugate the Internet to government-controlled public utility regulations from the 1930s. These regulations not only have no place in the 21st century economy, but will chill innovation and investment.” The Communications Act Title II regulations also “could lead to higher prices and fewer choices for consumers,” the company said in the statement.

"The number of parties suing is irrelevant. It's the strength of the arguments that matters. The FCC is on the strongest legal ground it can be on by returning to the bedrock nondiscrimination protections of Title II," Free Press Policy Director Matt Wood said. The agency didn't comment Friday, but in response to the other appeals, expressed confidence earlier this week that the net neutrality order will be upheld.

Meanwhile, USTelecom President Walter McCormick said he’s optimistic about the dual-tracked approach the industry is taking against the net neutrality order, during an appearance Friday on C-SPAN's The Communicators series. Appearing with Public Knowledge Vice President-Government Affairs Chris Lewis, McCormick said he’s quite confident the courts are “going to say what is clear in the statute, that there is no authority for the FCC to regulate the Internet.” He said Congress decided in the Telecommunications Act that the Internet should not be regulated as strongly as under Communications Act Title II.

McCormick also said he’s “actually optimistic” Congress will step in and allow the agency to bar the three main prongs of net neutrality regulations barring blocking, throttling and paid prioritization under Telecommunications Act Section 706 and without reclassifying broadband under Title II. “Congress tends to act when there is a consensus on a problem and consensus on the solution,” McCormick said. There’s no disagreement on having net neutrality rules, and there’s a consensus on “providing the FCC with the authority” to create net neutrality rules. “We have been informed there are some other parties that might file [court challenges] as well,” McCormick said, though it was unclear if he was referring to CenturyLink, which announced its appeal after the show was taped. USTelecom didn't elaborate.

Lewis said on the show that Public Knowledge will “probably file on behalf of the [net neutrality] rules and the FCC since we strongly believe in them,” clarifying later in an email he was referring to the potential of filing an intervenor's brief and not an appeal.

McCormick and Lewis during the show used Uber to illustrate their points. McCormick, who described Title II as “19th Century railroad legislation,” said Uber competes with taxicabs, which are also highly regulated. “Uber is more innovative, more exciting. Uber is able to offer consumers a wide variety of innovations that taxicabs cannot,” he said.

Lewis responded that it’s a false comparison because neither Uber nor cabs are gatekeepers like ISPs. “Imagine if the ISPs, a Comcast or an AT&T, had a competing service that competed with Uber,“ Lewis said. The ISPs could impose restrictions like a data cap that would hinder their competitors. It would be a “shame” if a startup like Uber had to negotiate with a “large duopoly company” to be able to compete, Lewis said. The Internet thrived under the idea that “consumers can go anywhere online … and because innovators were allowed to innovate without permission” from ISPs.

The Internet has changed since the Telecommunications Act deregulated information services, Lewis said. Noting the order involves broader questions than net neutrality, he said the Title II debate is about how to deal with other Internet issues like privacy. “The important question in front of us as policymakers … is whether we want to continue to have a federal commission empowered to protect consumers” as the Internet changes, Lewis said.

CTIA CEO Meredith Baker, meanwhile, wrote in an op-ed in The Hill Friday that the association is “seeking judicial review of the FCC’s order … to preserve the regulatory approach that helped bring high-speed mobile broadband options to all consumers across the country -- an approach that was designed for, and that has helped promote, the unique technical and competitive conditions of the mobile industry.”