NCTA, ACA, USTelecom look to check FCC’s Title II authority in Supreme Court

NCTA is accusing the FCC of crafting its 2015 Title II decree and corresponding net neutrality rules based on the vastly outdated standards of the Communications Act of 1934.

Telecom trade groups including the NCTA, ACA and USTelecom have asked the U.S. Supreme Court to hear their appeal of a lower-court ruling upholding the FCC's declaration of ISPs as common carrier service providers. 

Despite the stated intentions of the now-Republican-controlled FCC to roll back its 2015 Title II decree and associated net-neutrality regimen, the trade groups are trying to overturn a D.C. Circuit Court ruling that the FCC had the authority to classify internet service providers as Title II public utilities in the first place. 

In its petition filed yesterday, NCTA-The Internet Television Association accused the FCC of crafting its 2015 Title II decree and corresponding net-neutrality rules based on the vastly outdated standards of the Communications Act of 1934.

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“Title II imposes utility-style rules on providers of ‘interstate or foreign communication by wire or radio’ operating as ‘common carrier[s],” NCTA said. “Until the proceeding below, Title II had never applied to retail broadband Internet access services.”

For its part, the American Cable Association argued in its petition, also filed yesterday, that the FCC never had the authority to decree cable companies and other broadband service providers as common carriers. 

"The D.C. Circuit erred in upholding the FCC's 2015 Open Internet Order, which should have been overturned because the FCC lacked authority from Congress to subject broadband Internet service providers to common-carrier regulation, failed to adequately justify the change from its previous approach, and entirely failed to take into account that broadband providers had relied on decades of FCC precedent that was eliminated in a flash," said ACA President Matt Polka.

Meanwhile, in its filing, USTelecom also questioned the FCC’s authority to enact Title II rules. USTelecom argued that the Supreme Court should “grant the petition and vacate the D.C. Circuit’s decision below to vindicate Congress’s scheme of sharply limited regulation for broadband and, more generally, to ensure that courts do not permit unelected agencies to expand their regulatory powers over important aspects of the national economy without clear congressional authorization.”

In early May, the U.S. Court of Appeals for the District of Columbia Circuit denied the broadband industry’s petition for a rehearing on the Title II issue. A three-judge panel ruled 2-1 in favor of the FCC, which rendered its Title II decree under the watch of former Chairman Tom Wheeler.