Farella Braun + Martel Files Amicus Brief With Startup Advocacy Group Engine in USTA v. FCC

September 22, 2015 Announcement

SAN FRANCISCO (Sept. 22, 2015): Farella Braun + Martel LLP is representing Engine, a San Francisco-based advocacy group working with startups and government to develop policy and support technology entrepreneurship, along with nine technology startup organizations in its community, in the submission of an amicus curiae brief in support of the Federal Communications Commission (FCC) in the case United States Telecom Assoc. v. FCC, 15-1063, in the U.S. Court of Appeals for the District of Columbia Circuit. Counsel of record for amici are Anthony P. Schoenberg, Stephanie P. Skaff, Deepak Gupta and Andrew P. Nguyen of Farella Braun + Martel LLP.

In USTA v. FCC, petitioners are challenging the FCC’s Open Internet Order reclassifying broadband Internet as a telecommunications service under Title II of the Communications Act, and barring broadband providers from “unreasonable practices.” Included in the FCC’s order are three bright-line rules: (1) Internet Service Providers (ISPs) are banned from striking deals to allot faster access, a practice known as paid prioritization; (2) ISPs are forbidden from blocking access to legal content; and (3) ISPs are prohibited from throttling or degrading data speeds for lawful content and services.

“Network neutrality is a critically important issue to the entrepreneurs and startup innovators that cultivate ideas and create products that are positively enhancing our world. If we begin to allow the country’s largest Internet Service Providers to engage in discriminatory practices by charging fees for or prioritizing access for some, we will most certainly experience a multitude of harmful effects that will deter innovation,” said Schoenberg.

The brief argues that the FCC’s Open Internet Order, including its reclassification of broadband as a “telecommunications service” and its open Internet rules, promotes the judicially recognized “virtuous cycle” in which innovation by edge providers — companies that provide content, services and applications over the Internet — creates consumer demand for more and better broadband services, leading to additional investment in broadband infrastructure and further innovation. The catalyst for this “virtuous cycle” is competition and innovation by edge providers.  Edge providers, most of which are or began life as startups, depend on net neutrality for their existence. The FCC has long promoted net neutrality principles, and there has been a de facto open Internet in place for many years. In challenging the FCC’s Open Internet Order, Petitioners are seeking the ability to dramatically re-order the status quo by allowing broadband providers to engage in discriminatory and anti-competitive conduct that could significantly harm the “virtuous cycle” and compromise or even eliminate innovation. The Open Internet Order is needed to avoid these deleterious consequences.

Oral arguments in United States Telecom Assoc. v. FCC, 15-1063 are scheduled for December 4, 2015.

The following companies have joined the amicus brief:

  • Dwolla, Inc.
  • Our Film Festival, Inc.
  • Foursquare Labs, Inc.
  • General Assembly Space, Inc.
  • GitHub, Inc.
  • Imgur, Inc.
  • Keen Labs, Inc.
  • Mapbox, Inc.
  • Shapeways, Inc.

Farella Braun + Martel represents clients throughout the United States and abroad in sophisticated business transactions and complex commercial, civil and criminal litigation. Farella lawyers are known for their imaginative legal solutions, dynamism and intellectual creativity. With an unwavering service ethic and interdisciplinary team approach, the firm is committed to advancing clients' objectives in the most effective, coordinated and efficient manner. Founded in 1962, Farella is headquartered in San Francisco and maintains an office in the Napa Valley focused on the wine industry.

Cheryl Loof
Farella Braun + Martel LLP