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Oral arguments in the case concerning the repeal of network neutrality by Ajit Pai are scheduled for Friday morning, and advocates of network neutrality are confident that they will be victorious.
The groups that sued the Federal Communications Commission to quash the cancellation argue that Pai offered insufficient legal justification for deregulation of the broadband sector.
The rules of neutrality of the Obama era network, which were upheld in court in 2016, rested on the authority of Title II of the FCC for telecommunications services. When it eliminated the rules of internet neutrality, the FCC of Pai argued that broadband was not a telecommunication service and that it should rather be treated as a slightly regulated information service.
Courts generally exercise restraint with regard to FCC clbadifications, so that opponents of Pai will have the burden of proving that the reasoning of the FCC was not legally correct.
"We are confident that the court will overturn the FCC's decision and look forward to Friday's pleadings," said Chris Lewis, vice chair of the public rights advocacy group, one of dozens of petitioners seeking to cancel the cancellation of the repeal.
Is broadband a "telecommunication"?
Pleadings are scheduled to begin Friday at 9:30 am in the US District Court of Appeals for the District of Columbia and last approximately three hours. The court provides live audio streams of all oral arguments. The parties also detailed their arguments in court – here is the petitioners' joint submission and the defense of revocation filed by the FCC and the Department of Justice.
Lewis and other advocates of Internet neutrality told reporters the next oral arguments at a press conference on Wednesday.
Under US law, telecommunications is defined as "the transmission, between or between points specified by the user, of information of his choice, without modification of the form or content of the information sent and received".
The FCC's argument that broadband is not a telecom service does not hold water, according to the Free Press advocacy group, another claimant in the case.
"On the legal side, broadband should be clbadified as a telecommunications service within the meaning of the Communications Act," said Free Press Policy Director (and his lawyer), Matt Wood, at the conference. press. "ISPs send us our speech. They do not intervene and dictate what we can say or change in any way. "
Senator Edward Markey (D-Mbad.), Who helped draft the Telecommunications Act of 1996, is a major update to the Communications Act which contains the definition of telecommunications.
"Both the clear language [of the law] and the intention of Congress clearly indicate that broadband is a telecommunication service, "said Markey. As the author of the bill in the House, I know what we wanted to do in 1996. Yet President Pai ignored the law and our intent when the FCC reclbadified broadband as news. service and eliminated the rules of net neutrality ".
It could take months before the three-judge panel of the court makes a decision, and one or the other of the parties could appeal. There was a six month wait between the oral arguments and a decision in the case that confirmed the rules of the Obama era.
FCC: Broadband is an information service
US law defines an information service as "the offering of an ability to generate, acquire, store, process, process, retrieve, use or make available information by telecommunication".
The FCC / DoJ submission states that the FCC had clbadified broadband as an information service under previous administrations before the FCC, in the Obama era, decided that broadband is a telecommunication. The government's brief states:
The Commission reasonably clbadified broadband Internet access to an information service, notably because it offers users the "ability" to "acquire" and "recover" information "on websites and applications" and "use" this information by interacting with the stored data. . "The Supreme Court ruled in Brand X that it was reasonable for the Board to conclude that Internet access is an information service, since "subscribers can access third-party Web sites via the World Wide Web and browse their websites." content [only] because their [broadband] provider offers the opportunity to … acquire, [storing]… Recover [and] using … information. & # 39; "The agency made the same reasonable conclusion here.
Opponents of the FCC argued in their submission that the Brand X the 2005 decision does not apply here. Brand X the way consumers perceive the services of broadband providers, but the business model used by ISPs in Brand X is now "largely extinguished", they wrote. The first ISPs "have created their own portals and their own complementary information services [such as email] on their way of transmission, "said the memoir.But the ISPs are nowadays mainly serving as a way to access third party services.
"The question that the FCC now belongs to is quite different: is a transmission that falls under the definition of" telecommunications "properly clbadified as" telecommunications "? [an] "information service" based on its "ability" to facilitate interaction with third party information service providers? This question has nothing to do with consumer perception – the subject of Brand X's investigation, "they wrote.
FCC has "ignored" evidence of investment
The federal law on the administrative procedure requires the FCC to "demonstrate that the new policy has good reasons," said the 2016 decision upholding the rules of neutrality of the internet. Proponents of internet neutrality claim that the FCC of Pai has not provided a convincing political rationale for the repeal.
Pai's argument for the repeal was based almost entirely on his contention that broadband capital expenditures had decreased in response to net neutrality rules. However, ISPs have admitted to investors that the rules do not hinder broadband investment spending, and investments by some major ISPs have fallen after the repeal of Pai.
The FCC "has ignored evidence that refutes its argument, which follows from the false premise that investment in networks has a small cost in response to the latest developments in Washington," Lewis said. "The FCC has focused on submissions from the industry supposed to show that [Title II] the reclbadification decreased the investment in the network, while ignoring the contrary statements of the same industry players to their investors. "
In its submission, FCC / DoJ states that "Capital investments by broadband providers increased each year from 2009 to 2014, began to decline with the Title II order in 2015, 2016, even though the economy as a whole continued to grow. "The FCC / DoJ report stated that internet providers' statements to investors are" selective courses "," susceptible to multiple interpretations (…) and can not determine whether these companies would have increased their investments in their networks "if the rules of neutrality of the network had not been respected. adopted.
Pai's opponents also dispute his attempt to preempt the laws of net neutrality. According to opponents, the FCC's preemption argument is that the FCC tries to preempt state laws while arguing that the FCC itself does not have the power to strictly regulate the high debit. If the FCC does not have authority over broadband, the argument goes too.
The FCC "claims to pre-empt the right of the state without having, under its own theories, the power to do so," Lewis said.
The FCC and DoJ argue that state neutrality laws violate a "federal policy of non-regulation" and that broadband "is an interstate service that should be subject to uniform regulation."
Remove the risk for consumers
The FCC has not thought about how its repeal would increase risks for consumers, said Sarah Morris, deputy director of New America's Open Technology Institute. There is a long history of Internet service providers interfering with the content, she said, pointing out that disputes over interconnection payments were slowing internet access for months. before the FCC of the Obama era imposes network neutrality rules.
Angie Kronenberg, general counsel of Incompas, said that with the rules of net neutrality, ISPs "can charge their competitors higher prices on the Internet, they can slow them down, they can strangle them, they can promote their own programming, we are fighting for it. "
The situation could worsen if the FCC took it to court, as Internet service providers appeared to be adopting the "best behavior" while the repeal of neutrality is still subject to judicial review, said the General Manager of Mozilla, Denelle Dixon. Mozilla is the leading applicant against the FCC in the repeal case.
The press conference yesterday also brought together representatives of Santa Clara County Fire Services, who were beaten by Verizon while fighting the biggest California forest fire of the year. last.
"What the example of Verizon shows is that ISPs will act in their economic interest, in defiance of public safety," said James Williams, a lawyer for Santa Clara County.
Verizon's limitation of the fire service's "unlimited" data plan would not necessarily have violated the network neutrality rules. But the FCC could have evaluated the case under its Title II authority if it had not surrendered its Title II authority over broadband.
"At the moment, there is no police officer on the ground to determine whether the problematic behavior of ISPs is a violation of net neutrality," Morris said. "Under the old net neutrality regime, we could have made sure that an administrative agency examined the facts [in Santa Clara] and determine if a violation of the rules has occurred. We do not have that anymore. "
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