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Congressional Dems File Amicus Brief in Support of Net Neutrality

By Casey C. Sullivan, Esq. on September 24, 2015 | Last updated on March 21, 2019

Congress's Democratic leaders want the D.C. Circuit to know they are anything but neutral when it comes to net neutrality. More than two dozen congressional senators and representatives have signed on to an amicus brief supporting the FCC's right to regulate Internet service providers as "common carriers."

The amicus brief puts the Congress members, lead by Senator Edward Markey and Representative Anna Eshoo, against the telecom industry, which has sued to prevent the FCC's new net neutrality rules.

The Fight For Net Neutrality Continues

The FCC's net neutrality rules prohibit three main practices: blocking, throttling, and paid prioritization. Under the rules, Internet providers can't outright block content (by say, cutting off access to Netflix), can't slow the transmissions of data-intense users, and can't offer "Internet fast lanes" to those willing to pay extra to have their content delivered more quickly. All that's possible because the FCC decided that ISPs were "common carriers" under Title II of the Communications Act, meaning they can be prohibited from discriminating in "charges, practices, classifications, regulations, facilities, or services."

The FCC's net neutrality rules were met with an almost immediate lawsuit by the U.S. Telecom Association, an industry group. USTelecom claims that the FCC rules arbitrarily and capriciously misclassified the ISPs.

The Amici Speak

The Congress members' argument is straight forward. First, broadband access is a "telecommunications service" that the FCC may regulate, as "telecommunications" is broadly defined as the transmission of information between users without change in content or form. (Facebook may alter how an image is displayed, but your internet service provider transmits that information unchanged between you and Mark Zuckerberg.) That's no different from a telephone call, the brief argues.

The amicus brief goes on to push back against arguments from the telecom industry that ISPs are in fact information services, not telecommunications services. According to ISPs, the Internet's domain name system (which makes sure that FindLaw.com takes you to FindLaw) and caching (which lets servers store copies of websites for faster transmission) mean that it's not just some person-to-person communications system. Those applications, the FCC argued, were simply in support of the ISP's telecommunications services, not separate from them -- and the FCC's in a better position than anyone to determine that, according to the brief.

In addition to Sen. Markey and Rep. Eshoo, the amicus brief was signed by eight other Senators including Bernie Sanders, Cory Booker, Barbara Boxer, and 17 Representatives. Oral arguments in the case are scheduled for early December.

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