In a new court brief, Internet providers including AT&T, CenturyLink and several trade groups are refusing to give up their fight against Internet regulation as a utility that the FCC imposed earlier this year. AT&T made concessions to FCC demands to win approval for its DirecTV buy, but the brief shows lingering concern about what the FCC is doing.

“FCC’s Title II Utility Regulation Unlawful”

So declared USTelecom in the brief. Also signing on are trade groups NCTA, CTIA, ACA amd WISPA.

“The Federal Communications Commission’s (FCC) decision to impose public utility regulation on broadband Internet access service violates decades of long-standing law and regulatory policy,” argues USTelecom’s Jon Banks.

“According to the brief, the order represents an unprecedented transfer of regulatory power to the FCC without a clear warrant from Congress. By defining the public switched network to reach every device that uses an IP address – everything from mobile phones to cars to refrigerators – the FCC has asserted authority to regulate a massive portion of the entire U.S. economy.”

The “net neutrality” and “open Internet” debate is far from over.

The new brief was filed after FCC Chair Tom Wheeler told a Congressional hearing on Wednesday that the so-called Title II is NOT affecting broadband deployment plans.

“T-Mobile, Cablevision, Charter, and Frontier have all publicly said Title II regulation does not discourage their investment. Recent transactions, both announced and rumored, point to the same conclusion. And, of course, the post-Open Internet Order announcements by AT&T, Bright House, CenturyLink, Cincinnati Bell, Comcast, Cox Cable, TDS Telecom, and Time Warner Cable about their plans to expand their broadband service certainly suggest that healthy
network investment will continue under the new rules,” Wheeler declared.

AT&T is moving ahead with its gigabit Internet expansion in the Triangle, across other North Carolina markets and nationally. The company also said it would not fight certain “open Internet” rules as imposed by the FCC in winning the DirecTV merger approval.

CenturyLink, which covers former Sprint territory in North Carolina, is as well.

However, the Internet providers still have concerns and continue to fight in court. Here are the key concerns as cited by USTelecom:

  • “The commission illegally reversed years of established regulatory history based on claims that consumer perceptions about what broadband providers offer have drastically changed. Furthermore, the commission denies any relationship between classification and investment in its decision, ignoring the billions of dollars of investment built upon a deliberately induced reliance that broadband would continue to be regulated as an information service. The FCC also failed to provide evidence of factual changes it relied on to support its abrupt shift in regulatory stance.
  • “Reclassifying mobile broadband as a common carrier violates years of FCC policy holding that mobile broadband is an information service and not a commercial mobile service. This change cannot be justified by the FCC’s assertions that mobile broadband’s success [justifies?] its regulation as a public utility, or that fixed broadband’s reclassification compels a parallel framework for mobile.
  • “The order’s assertion of authority over interconnection arrangements and creation of a vaguely defined Internet Conduct Standard is illegal, because the decisions are based on the improper classification of broadband as a common carrier service. Furthermore, regulation of Internet interconnection without classifying that service as common carriage under Title II violates the DC Circuit’s Verizon ruling.
  • “The order adopts a vastly expanded regime of Internet regulation, parts of which were not fully vetted by the public because the commission did not follow standard notice and public comment process as required by the Administrative Procedure Act. The order is not a culmination of a thoughtful and deliberative process, but one put together in haste and influenced by politics. As the D.C. Circuit has long maintained, “an agency may not repudiate precedent simply to conform with a shifting political mood.” Nat’l Black Media Coalition v. FCC, 775 F.2d 342, 356 n.17 (D.C.Cir. 1985)”

In a statement, USTelecom CEO Walter B. McCormick Jr. added:

“USTelecom supports the open Internet standards, our member companies operate in conformance with them, and we believe that they should be enacted into law by the United States Congress. However, the FCC’s reclassification of broadband Internet access to be a Title II common carrier service involves extraordinary regulatory overreach, and a broad assertion of jurisdiction that inserts the commission deep into the management and operation of the Internet, violates two decades of established law and FCC precedent, and is contrary to the express provisions of statute.

“As our brief shows, the commission’s approach is both unlawful and unwise, abandoning a long-successful policy that has produced hundreds of billions of dollars in broadband infrastructure investment. While we are challenging the FCC’s action in court and believe we will be successful, we will continue to work toward positive enactment of the open Internet standards in Congress consistent with our long-standing support for an open Internet.”

There is movement in Congress to buck the FCC’s power grab over the Internet.

And the new brief indicates the court fight is far from over.

Read the full brief at: