NCTA's Big Guns Weigh in on Title II

The National Cable & Telecommunications Association's high-powered lawyers told reporters they were confident the Federal Communications Commission's Title II reclassification of the Internet would be overturned by the court, and that could happen with the baseline, bright-line rules remaining in effect. That came in a meeting with reporters featuring NCTA president Michael Powell, former solicitor general Ted Olson and former Supreme Court nominee Miguel Estrada. Olson and Estrada tore into the FCC, saying it was trying to write new law, change policy without justification or notice, and otherwise run roughshod over the Congress, communications law and the Administrative Procedures Act, which set out the rules for how agencies regulate, with prohibitions on arbitrary and capricious decision making. They argued the cable and telecommunication companies legal challenge was high stakes, and one of the most important challenges -- the term "monumental" was used -- to regulatory authority ever, given that it deals with the Internet's future.

Olson talked of a suffocating FCC whose heavy hand of regulation would "stifle and strangle" innovation and investment. They said that the FCC switched from a Sec. 706 based approach that had talked about Title II in only two graphs, and even then only as a backstop, its own version of Title II for the 21st Century, with 128 graphs outlining it. That, they said, did not square with APA guidelines that the public must be given notice of what the FCC is actually planning to do, and allowed to comment on it. They did not use the term bait and switch, but the suggestion was the FCC had signaled one thing, and done something entirely different without sufficient notice of the change.