Blackburn Leads Amicus Backing Industry Challenges to FCC Net Neutrality Order

week in USTelecom v. FCC, No. 15-1063, backing industry challenges to the order. House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., was the lead signatory of the brief, backed by other House Republicans including Reps. Gus Bilirakis of Texas, Kevin Cramer of North Dakota and Mike Pompeo of Kansas. “Congress certainly did not leave (and would never have left) this issue of great national importance to be decided by the FCC,” they told the court of FCC reclassification of broadband as a Communications Act Title II telecom service. “The legislative activity undertaken by Congress since the 1996 Act demonstrates that Congress never intended the Title II-type 'net neutrality' obligations the FCC imposes on broadband providers in the Order and certainly never imagined the radical step of reclassification, which goes far beyond even the legislative proposals for rules that were repeatedly rejected by Congress.” They refer several times to an earlier amicus brief led by Sens. Ed Markey, D-Mass., and House Communications Subcommittee ranking member Anna Eshoo, D-Calif., who were involved in the 1996 Telecom Act’s writing and supportive of the current order (see 1509210058). The Republicans “have a strong interest in making clear that the Markey-Eshoo Amicus Brief does not represent the views of Congress and in fact is opposed by Members of the majority party in the House,” they said. Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation, told us it’s unusual for such briefs to be filed late -- the deadline was Aug. 6 -- but the court is likely receptive due to the consent of most parties involved and the filers’ status as members of Congress. “It is especially unusual for a brief to be filed in DC once the panel is known; this allows the parties to tailor their arguments to the particular judges,” emailed Schwartzman, a net neutrality advocate. He criticized the Republicans’ argument, which involved tallying the many pieces of net neutrality legislation introduced over the years. “Most importantly, the issue in the case is what Congress did and thought in 1996 when it defined the term ‘telecommunications service,’” he said. “Anything that happened after that is of minimal relevance. … Leaving aside the fact that DSL was regulated under Title II from 1996 through 2004, there are many reasons why people introduce legislation even when an agency could use existing power to accomplish a particular goal. Legislation is faster. Also, in this case, until 2009 the FCC wasn't interested in adopting rules.”