Verizon, Federal Judges Challenge FCC Open Internet Order
A panel of judges suggest that the Federal Communications Commission may have overstepped its authority in issuing rules to prevent broadband providers from blocking or discriminating against content on their networks. Verizon, specifically, is challenging the commission.
Tue, September 10, 2013
CIO — WASHINGTON -- A panel of federal judges Monday challenged the Federal Communications Commission's authority to regulate broadband access services, peppering the agency's attorney during an oral-argument session with questions about the scope of its 2010 open Internet order.
That order, which bars Internet service providers from blocking or discriminating against lawful Web content, codified a version of network neutrality that broadband operators have long resisted. Verizon challenged the order in court, arguing that the commission overstepped its authority in writing those rules, while also asserting a First-Amendment free speech right to manage the content passing over its network.
Verizon's attorney, Helgi Walker of the firm Wiley Rein, devoted much of her presentation to a critique of the FCC's statutory authority to issue regulations in the broadband sector, contending that the last major overhaul of communications law, the 1996 Telecommunications Act, did not give the agency an explicit mandate in the space.
"It's just not credible," Walker argued, that Congress would have intended to delegate broadband authority to the commission in such an "opaque and indeed convoluted way."
FCC Again Defends a Net Neutrality Rule
Monday's arguments mark the second time the FCC has appeared in recent years before the D.C. Circuit Court to defend a net neutrality rulemaking, in both cases arguing that the rules are limited but necessary to preserve the free flow of traffic on the Web and ensure that the Internet remains a thriving segment of the economy.
Three years ago, the agency was in the same court defending its decision to punish Comcast for secretly throttling peer-to-peer traffic on its network. The judges, including David Tatel, who is among those presiding over the Verizon case, unanimously ruled that the FCC had exceeded its authority and vacated the Comcast ruling. Walker, Verizon's lead attorney, also represented Comcast in that case.
Tatel made no effort to conceal his skepticism about the FCC's argument, at times shaking his head or rubbing his eyes in a show of exasperation as the commission's attorney and an intervenor were making their arguments.
Sean Lev, the FCC's general counsel, countered Walker's argument about statutory authority with a different interpretation of the 96 Telecom Act, telling the judges that the open Internet order is "firmly grounded in the relevant statute."
The judges' most probing questions of Lev focused on the practical impact of the rules and the extent to which they prohibit new business models and experimentation in the ways that ISPs manage their networks.