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Net neutrality activists and state officials are taking FCC to court. Here's how they'll argue the case

Net neutrality activists and state officials are taking FCC to court. Here's how they'll argue the case
Ajit Pai is chairman of the Federal Communications Commission. (Jacquelyn Martin / Associated Press)

Opponents of the Federal Communications Commission have outlined their chief arguments on net neutrality to a federal appeals court in Washington, in hopes of undoing the FCC's move last year to repeal its own rules for internet service providers.

The legal briefs reflect a widening front in the multi-pronged campaign by consumer groups and tech companies to rescue regulations that originally barred providers from blocking websites or slowing them down. With the FCC's changes, internet service providers may legally manipulate internet traffic as it travels over their infrastructure, so long as they disclose their practices to consumers.

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The FCC's decision last year to repeal the rules was "arbitrary and capricious," officials from the state of New York, the California Public Utilities Commission and others said in court documents Monday — asking the U.S. Court of Appeals for the Disctrict of Columbia Circuit to overrule the agency.

The FCC was too credulous in accepting industry promises "to refrain from harmful practices," the officials said, "notwithstanding substantial record evidence showing that [internet service] providers have abused and will abuse their gatekeeper roles in ways that harm consumers and threaten public safety."

Another group representing Mozilla — the maker of the Firefox web browser — as well as Etsy, Vimeo and a number of consumer organizations said the FCC's core rule changes made no logical sense and improperly conflate high-speed internet service with online applications.

In justifying the deregulation, the FCC had said broadband is more like an information service than a telecommunications service. The distinction is important because the legal classification determines the extent to which the FCC may regulate the service providers. For example, the "telecommunications" classification allowed the FCC, in 2015, to apply stricter rules to internet service providers that not only banned the blocking of websites but also imposed new obligations on carriers meant to safeguard customer privacy.

The FCC said in its rule change last year that although many people no longer rely on their internet service provider for crucial applications such as email or search, many providers still maintain these applications.

What's more, the agency said, all internet service providers perform tasks that fall under the definition of an information service, such as interpreting what a user means when they type "fcc.gov" into their browsers and translating it into an IP address that servers can understand. This system, known as the Domain Name System, is what enables people who are connected to the internet to get from one site to another.

"While many popular uses of the internet have shifted over time," the FCC's order said, "the record reveals that broadband internet access service continues to offer information service capabilities that typical users both expect and rely upon."

But tech companies and consumer groups told the court Monday that third-party services routinely carry out those same functions, and that ISPs cannot lay claim to lighter regulation just because a portion of their business is involved in performing them.

"The FCC could not have reasonably concluded that a drop of DNS and caching in a sea of transmission transformed the service into something that could properly be called an information service," the brief said.

The overall impression, the group said, is that of trying to deregulate all roads that lead to hotels by simply reclassifying the roads themselves as hotels.

"Never mind, continues the builder, that the road itself does not provide guests with any lodging, business conferencing, or beach recreation services," the brief said. "That is the essence of what the FCC argues."

The FCC declined to comment. Spokespeople for USTelecom and NCTA — the Internet and Television Assn., two major broadband industry groups, didn't respond to a request for comment.

The FCC has a court deadline in October to file its response.

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