OTI Defends Open Internet Rules in Court

In response to the telecom industry’s lawsuit challenging the Federal Communications Commission’s (FCC) authority to treat broadband internet access as a telecommunications service and adopt stronger pro-consumer rules protecting the open internet, the Open Technology Institute (OTI), a New America program fostering equitable access to digital technology and its benefits, filed a brief, yesterday, with the Court of Appeals for the Sixth Circuit.

OTI joined four other public interest and nonprofit organizations in defending the FCC’s April 2024 order in court and issued the following statement from Raza Panjwani, a senior policy counsel at OTI.

We are confident that with the benefit of a full briefing, the court will reject the ISP industry’s attempt to rewrite the law and history and allow the FCC’s 2024 order to take effect.

The telecommunications industry has spent two decades shifting legal goalposts to avoid accountability and scrutiny. To evade basic oversight and common sense rules, internet service providers are now invoking the major-questions doctrine (MQD) and arguing that a broadband internet provider is functionally offering the same kind of service as companies like Instagram or Amazon.

But the MQD is not a get-out-of-regulation-free card. Unlike other major-questions doctrine cases that have either relied on vague or limited language, or agencies extending their authority into new domains, this one is not warranted, as the FCC has been making classification decisions for decades and in accordance with definitions and powers specified by Congress. These powers include the FCC’s classification decisions over broadband internet service. This is not a new question for the courts, who have endorsed the FCC’s authority to classify on the basis of factual findings time and time again.

Let’s not forget what’s at stake here: Without open internet rules, ISPs and mobile carriers could go back to a world in which they have the power to block innovative services, interfere with app stores, or use their privileged position to extract money from content providers or overcharge their customers.