D.C. Memo: FCC Tells Court ISPs Are Like 'DoorDash or GrubHub'
D.C. Memo: FCC Tells Court ISPs Are Like 'DoorDash or GrubHub'
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Door Dash: Broadband ISPs like AT&T and Comcast merely provide the facilities to transmit information over the Internet, allowing the FCC to regulate them as common carriers and mandate their adherence to Net Neutrality rules to ensure nondiscrimination, FCC lawyers said in a 93-page court filing last night. "Today’s broadband providers are not like a pizzeria that delivers its own pizza to customers; they are akin to DoorDash or GrubHub, the delivery companies that deliver food from third-party restaurants. Just as those companies pick up and deliver customers’ orders from restaurants, broadband providers offer transmission to and from user-selected websites and applications. These companies do not make or alter the food they deliver," the FCC said. The FCC is trying to salvage its Net Neutrality rules adopted in April but stayed by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit on Aug. 1 — just four days before the rules were to take effect. A key legal point for the Sixth Circuit was the Supreme Court's Major Questions Doctrine, which bars the FCC from resolving legal issues of vast political and economic significance without clear authorization from Congress. The FCC said regulating ISPs as common carriers was the "most natural reading" of federal law and invoking the Major Questions Doctrine to overturn the FCC was a "radical approach" that clashed with Supreme Court precedent. "The Major Questions Doctrine seeks to preserve Congress’s prerogative to set the law; it is not a license to ignore or defy what Congress has directed," the FCC said. Various public interest groups also filed a joint brief Wednesday night, including the Benton Institute for Broadband & Society, Free Press, and Public Knowledge. Almost half of their brief was devoted to shooting down ISPs' arguments that Net Neutrality was voided by the Major Questions Doctrine. "The ISPs fail to describe any way in which these rules will seriously affect their businesses or how they provide Internet access. Indeed, they have long insisted that the rules principally forbid them from doing things they have no intention of doing," the groups said. Oral arguments before the Cincinnati-based Sixth Circuit are scheduled for Oct. 31, 2024.
