ISPs Urge Supreme Court to Kill Net Neutrality

ISPs have spent millions lobbying the government and Ajit Pai's FCC to dismantle popular net neutrality protections, but they're also taking their fight once again to the Supreme Court in an alternative attempt to kill the popular rules. AT&T, CenturyLink, the cable industry's top lobbying group the NCTA and other major ISPs petitioned the Supreme Court this week to hear their latest appeal of the 2015 rules, which protect consumers from bad behavior by ISPs in the uncompetitive broadband market.

The rules were upheld by the courts late last year in what, at the time, felt like a big win for fans of an open, healthy and competitive internet.

That court ruled that the FCC was well within its authority to craft the rules, and shot down numerous ISP claims -- such as AT&T's claim the rules violated the company's First Amendment rights.

In fact, the FCC's decision to reclassify ISPs as common carriers under Title II of the Communications act is in many ways courtesy of Verizon. Verizon sued to overturn the agency's fairly flimsy 2010 rules, which didn't even cover wireless. The courts subsequently told the agency that if it wanted to create legally-enforceable rules, it needed to reclassify ISPs as common carriers -- which is precisely what the agency did under former boss Tom Wheeler.

Fearing somebody might actually do something about their abuse of uncompetitive markets, ISPs like AT&T have thrown a perpetual hissy fit over the rules, consistently claiming all manner of hardship due to the fairly modest regulations. While tougher than its 2010 rules, the FCC's 2015 rules are notably weaker than most net neutrality protections in countries like Japan, Chile, The Netherlands, and India -- and didn't even explicitly ban things like using usage caps to hinder competitors (aka zero rating). That's not stopping AT&T from being a drama queen.

"The practical stakes are immense," AT&T said in this week's appeal of that ruling, stating that the rules "fundamentally transform the internet" and will have a "staggering" impact on infrastructure investment.

While ISPs have paid economists to repeatedly claim that net neutrality hamstrung sector investment, independent analysis by journalists have repeatedly proven that claim false. ISP executives have also repeatedly informed their own investors that the rules didn't harm their financials or investment strategies in the slightest.

What are ISPs really afraid of? That regulators will prevent them from using a lack of last-mile competition to hamstring smaller competitors, including many content companies. They're also worried the agency might stop them from imposing draconian and unnecessary usage caps and overage fees or misleading hidden surcharges on these captive users.

It seems entirely possible that the Supreme Court won't hear the case given that Ajit Pai's FCC is moving forward with a gut to kill the rules, hamstring FCC authority over broadband providers, and roll back the agency's Title II classification. That decision is being made despite an immense backlash by the public, surveys showing repeatedly that the majority of consumers support the rules.

Of course even if the Supreme Court rejects the appeal the legal fisticuffs won't be over. After voting to kill the rules later this year, Ajit Pai's FCC will inevitably be sued by impacted small companies and consumer advocates, all of which will be sure to point out the amateur hour the effort has become, whether talking about the FCC's apparently fake DDOS . or the agency's apathy to the fact that somebody is abusing the open comment system to try and downplay legitimate public opposition to the plan.