Verizon: FCC Internet Rules Tackle Hypothetical Problem

By Josh Long Comments
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One of America's largest telecommunications companies contends the Federal Communications Commission has vastly overstepped its authority in regulating the Internet.

Not only has the FCC exceeded its authority, Verizon maintains, it has adopted so-called Net Neutrality rules to address a widespread problem that doesn't exist.

In an appellate brief filed last month with the U.S. Court of Appeals for the District of Columbia Circuit, Verizon declared the FCC adopted an 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."

Verizon and MetroPCS are asking federal appellate judges to throw out rules that went into effect last November.

The appeal concerns "the importance of restraint on the regulatory authority in the Internet space," Verizon executive Tom Tauke said Monday during a conference in Aspen, Colo., as reported by CNET.

Released in December 2010, the controversial rules contained in the "Open Internet Order" require wireless and landline broadband providers to make certain disclosures to consumers and comply with a number of other obligations that are intended to preserve the openness of the Internet.

Citing a rational for its rules, the FCC asserted that the openness of the Internet faces genuine threats from broadband providers that block or degrade content and applications without revealing their practices.

In the brief, Verizon contends those problems are hypothetical. The telecom giant acknowledged the FCC pinpointed a handful of alleged "instances of harmful practices" but claims the agency's "Order was motivated not by broadband providers' current practices, but by the FCC's view of their theoretical incentives and ability to engage in practices that the FCC disfavors."

Since the rules have taken effect, there has been little to no fuss over violations. FCC Chairman Julius Genachowski revealed in May the agency had not received a single complaint to date, according to an article in Multichannel News.

The FCC apparently hasn't yet filed its appellate brief responding to Verizon; the brief doesn't appear on an FCC website listing recent court filings, and a spokesperson for the agency didn't respond Tuesday for a request for the brief. The brief is due by early September, according to an attorney in Washington, D.C.

Public Knowledge, a Washington, D.C.-based public interest group that wants to preserve the openness of the Internet, is behind the FCC.

"The rules articulate a straightforward principle--that Internet access providers should not be able to pick and choose how you get your information--or from whom," said Sherwin Siy, VP of Legal Affairs with Public Knowledge, in an email to us. "These principles underpin common carriage in a variety of contexts as well as in communications law. While we think that the rules didn't go far enough, and that the FCC needs to do more to protect consumers, they're a good start, and if they're thrown out, the Commission's ability to protect broadband consumers in any way will be threatened."

The federal court is reviewing the case two years after finding that the FCC overstepped its authority in a case involving regulation of Comcast after customers learned the cable giant was interfering with their use of peer-to-peer network applications. In that case, the FCC acknowledged its authority was not explicit but maintained it was ancillary to the performance of its responsibilities mandated under federal law.

In a decision filed on April 6, 2010, authored by Judge David S. Tatel, the court sided with Comcast, finding that the agency failed to justify its exercise of ancillary authority over Comcast's network management practices.

Verizon contends the FCC is once again regulating the Internet when it lacks authority to do so. 

"Rather than proceeding with caution in light of Comcast, the FCC unilaterally adopted rules that go even farther than its prior action and impose dramatic new restrictions on broadband Internet access service providers," Verizon wrote in its appellate brief.

The FCC, however, cites Section 706 of the 1996 Telecommunications Act and other federal law as granting it authority to issue its rules.

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