Verizon, MetroPCS Say Court Must Overturn Net Neutrality Order
The FCC’s December 2010 net neutrality order suffers from the same defects as the Comcast order rejected by the same court and should also be vacated, Verizon and MetroPCS said in a joint filing at the U.S. Circuit Court of Appeals for the D.C. Circuit, which is hearing the appeal. The FCC approved the order by a 3-2 vote, with the two FCC Republicans, Robert McDowell and then-Commissioner Meredith Baker, warning it would not hold up on appeal (CD Dec 22/10 p1).
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"This appeal challenges the FCC’s second attempt to conjure a role for itself with respect to regulation of the Internet -- in particular, broadband Internet access service,” the carriers said. “In Comcast Corp. v. FCC, … this Court vacated the FCC’s previous effort as exceeding its statutory authority.” The FCC could have proceeded with “caution in light of Comcast,” the brief argues. Instead, “the FCC unilaterally adopted rules that go even farther than its prior action and impose dramatic new restrictions on broadband Internet access service providers.” The net neutrality order “imposes classic common-carrier obligations on broadband providers, requiring them to carry the traffic of all ‘edge providers’ and even wading into price controls by setting a uniform, nondiscriminatory price of zero for such carriage,” the carried contend. “This regulation of Internet access service is expressly prohibited by the Communications Act."
Verizon and MetroPCS said the FCC’s “sweeping theory” underlying the order “extends to all other components of the Internet -- from website, application, search engine, and content providers to specialized services to Internet backbone companies.” “Tellingly, the FCC found it necessary explicitly to disclaim that the rules currently reach such entities and even to clarify that other entities, e.g., coffee shops and airlines, are not covered,” they said. The commission based its “self-described ‘broad authority’ to adopt the rules not on any express or otherwise clear delegation of authority but on a hodgepodge of provisions scattered throughout the Act. … However, none of these provisions remotely suggests that Congress ever intended to empower the agency with such vast authority over the Internet."
The FCC also approved the order “without any evidence of a systematic problem in need of solution, candidly recognizing that the Internet was already ‘open’ and working well for consumers,” the carriers told the court. “And the Commission singled out broadband providers for burdensome new regulation even though other key providers in the Internet economy have the same theoretical incentive and ability to engage in the conduct that concerned the FCC."
"We look forward to defending our open Internet rules in court,” an FCC spokesman said in response. “This strong and balanced framework is helping ensure that the Internet continues to thrive as an engine for innovation, investment, job creation, and free expression.”