• by Wendy Davis  @wendyndavis, May 13, 2015

The Federal Communications Commission's recent decision to reclassify broadband as a utility service will impose “immense burdens and costs” on Internet service providers, a coalition of trade groups and telecoms argues in new court papers.

“The order represents a sharp about-face in which a federal agency -- without any statutory change or congressional sanction -- has arrogated to itself breathtaking authority over the most transformative technology in living memory,” USTelecom Association, CTIA-The Wireless Association, Wireless Internet Service Providers Association, the American Cable Association, the National Cable & Telecommunications Association, AT&T and CenturyLink say today in a petition seeking to stay some of the new rules. “It has done so by subjecting broadband Internet access service to a regime that was originally designed, not for the era of social networking and streaming video, but for 19th century railroads.”

The opponents are asking the D.C. Circuit Court of Appeals to stay the FCC's decision to reclassify broadband access as a utility, as well as the new “general conduct” regulation -- which broadly prohibits Internet service providers from unreasonably impeding consumers and content providers from reaching each other.

The groups are not seeking to stay other portions of the net neutrality order, including the rules that prohibit Internet service providers from blocking or degrading traffic and from creating paid fast lanes.

Officials at the FCC recently rejected a request to stay the rules, writing that the trade groups and broadband providers didn't show that they will suffer irreparable harm if the rules take effect as scheduled.

But AT&T and the others argue that they will suffer financial loss due to uncertainty over how the new rules -- including privacy rules -- will be implemented.

They specifically complain that the FCC's decision to treat broadband as a utility also empowers the agency to impose privacy rules that could curb its behavioral advertising efforts, which involve targeting ads to users based on the Web sites they visit.

“Today, broadband providers can lawfully use information about customers’ Internet access services and usage to develop customized marketing programs that benefit both the provider and its customers,” AT&T and the others say in their court papers. “The FCC’s reclassification creates significant uncertainty as to what the new rules of the road will be for broadband -- and whether existing practices will subject providers to liability.”

The groups add that AT&T estimates it would lose up to $400 million by temporarily stopping its ad-targeting initiative in order to implement “consent mechanisms based on its guess as to content of future FCC rules.”