Supreme Court Petition on USF/ICC May Have Net Neutrality Implications

U.S. Cellular, in questioning whether the agency had the authority to require USF providers to deploy broadband, argued that Congress limited the agency’s rulemaking authority to carrying out the provisions of the Communications Act. The broadband-deployment provisions of Telecommunications Act Section 706 aren't among the Communications Act provisions the FCC is authorized to administer, the brief said. U.S. Cellular urged the court to take up the question sooner rather than later.

“With the issuance of the FCC’s Net Neutrality Order, this case has taken on added importance," the brief said. “The question is not whether the Court should rule on the FCC’s attempt to use § 706 to regulate the Internet, but when. It can do so now, thus avoiding harmful and unnecessary regulatory uncertainty. Or it can do so in three years, when the Net Neutrality Order is likely to reach the Court,” said the brief from Lukas Nace, representing the company. The agency urged the court not to take up the May 2014 10th U.S. Circuit Court of Appeals decision upholding the order, in part because the petitioners’ argument rests on the classification of broadband as an information service, but “the FCC has now reversed that classification,” the brief said. The FCC didn't comment Wednesday, but has previously said the net neutrality order rests on both Section 706 authority and under Communications Act Title II.

Free Press Policy Director Matt Wood said even if U.S. Cellular were to prevail, the net neutrality order would still be on a strong foundation. “Title II was more than good enough, and we're very confident on that point. Title II is the law that should and now does apply to broadband Internet access,” he said.

On the USF/ICC order, the U.S. Cellular brief said: “Because Congress expressly limited the FCC’s rulemaking authority to adopting rules necessary to implement the Act, the FCC exceeded the bounds of its statutory authority when it promulgated USF rules to carry out the broadband-deployment provisions” of Section 706. “The Court should take this early opportunity to rebuke the FCC’s latest attempt to regulate broadband by stretching its regulatory authority beyond the reach of its enabling statute,” the brief said.

NARUC also filed its reply in support of the cert Monday. It argued the FCC didn't provide “any substantive response" to NARUC’s argument that the 10th Circuit didn’t “provide the rigorous statutory analysis required by City of Arlington, Texas v. FCC" to determine whether the agency should get deference.

The net neutrality order “will ensure that the Internet continues to embody the values at the very core of the First Amendment,” said FCC Commissioner Mignon Clyburn in an April 1 speech at the Rebele First Amendment Fellowship Symposium at Stanford University, posted on the agency website Wednesday. “Without the rules we voted to put in place, any ISP would be free to block, throttle, favor or discriminate against traffic, or extract tolls from any user for any reason, or for no reason at all. This is more than a theoretical problem. Providers here in the United States have, in fact, blocked applications on mobile devices, which not only hampers free expression, but also restricts competition and innovation, by allowing the companies that control the pipelines and airwaves, not the content creator or consumer, to pick winners and losers,” said Clyburn, who voted for the order.