USTA Supports Net Neutrality, Except When It Doesn’t

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You may know that Public Knowledge recently intervened in support of the Federal Communications Commission (FCC) in the net neutrality litigation. As more legal filings now start to arrive in that lawsuit, one filing called a Statement of Issues to Be Raised, from the US Telecom Association (USTA), sheds some light on what at least some ISPs really think about net neutrality.

USTA and its telecom company members (including AT&T and Verizon) have gone to great lengths to try to convince everyone that they would never (never) oppose net neutrality in general. But wait, you might say. If USTA support net neutrality rules, why was it one of the first parties to sue the FCC to overturn the rules? Well, as USTA explained: “USTelecom strongly supports open Internet rules, but disagrees with the Federal Communications Commission’s decision to reclassify broadband Internet providers as common carriers in the order adopted March 12,” and accordingly, “FCC rules prohibiting blocking or throttling will not be the focus of our appeal.” We’ve heard this line before. As AT&T, one of USTA’s members, put it on one panel: “It’s not the rules of net neutrality that people are concerned about. It’s the regulation under Title II.”

But, spin has a funny way of falling away when we get into court and ISPs have to tell us what they really think. For example, you may remember during the last round of net neutrality litigation, Verizon had to admit to the D.C. Circuit that it would be pursuing paid prioritization deals without net neutrality rules.

Similarly, USTA has now filed its “Statement of Issues to Be Raised” in the D.C. Circuit, which broadly lays out why USTA is challenging the FCC’s recent decision to reclassify broadband Internet access as a Title II telecommunications service and the FCC’s new open Internet rules. Unsurprisingly, USTA will argue that the FCC’s decision to reclassify broadband Internet access and assert authority over interconnection was unreasonable and violated the First and Fifth Amendments, and that the FCC did not give enough notice in its agency proceeding.

But USTA’s Statement of Issues also includes one more Issue: “Whether the specific rules the FCC adopted, including but not limited to its Internet conduct standard, exceed the agency’s authority, are arbitrary and capricious, or otherwise contrary to law.” In other words, USTA is challenging the very net neutrality rules that it says it supports.

So, for those of you keeping score at home, USTA: (1) “strongly supports open Internet rules,” and also (2) is directly targeting the open Internet rules in court. Even if USTA loses its arguments over procedural notice and FCC authority, it will still tell the court to overturn the net neutrality rules on their own merits.

The revelation that USTA does not, in fact, support net neutrality rules, may not actually shock anyone who’s been paying attention. But it’s worth calling out companies who pay lip service to net neutrality but will go to federal court to make sure we don’t actually have strong, enforceable net neutrality rules.

With friends like these, who needs enemies?

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