Verizon files challenge to FCC’s “Open Internet” order
posted at 10:12 am on January 21, 2011 by Ed Morrissey
It didn’t take long for one of the telecoms to challenge the FCC on its latest arrogation of regulatory jurisdiction over the Internet. Verizon went to the DC Circuit Court of Appeals, the same venue that rebuked the FCC and its chair Julius Genachowski for attempting to regulate the Internet without authority from Congress:
Michael Glover, Verizon’s deputy general counsel, said in a statement that the appeal follows a “careful review” of the FCC’s net-neutrality rules, which the agency passed in December.
“We are deeply concerned by the FCC’s assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself,” he said. “We believe this assertion of authority goes well beyond any authority provided by Congress and creates uncertainty for the communications industry, innovators, investors and consumers.”
When Genachowski announced his “Open Internet” regulatory plan, the Net Neutrality advocates at Free Press didn’t exactly greet it with open arms. However, they didn’t waste much time in blasting Verizon, as other did for filing the case in the same court that overturned the last FCC action:
“Verizon’s decision demonstrates that even the most weak and watered-down rules aren’t enough to appease giant phone companies,” Aparna Sridhar, policy counsel, said in a statement.
“It’s ironic that Verizon is unhappy with rules that were written to placate it, and it’s now clear that it will settle for nothing less than total deregulation and a toothless FCC in the relentless pursuit of profit,” she said.
Other net-neutrality proponents took issue with Verizon’s efforts to get the case into the D.C. Circuit, which was hostile to the FCC’s open Internet efforts last time around.
“Verizon is trying to be too cute in trying to pick not only the venue for the challenge to the rules, but also to pick the judges to hear it. The court should see through this ploy and reject Verizon’s attempt to pick the home field for its appeal,” said Harold Feld, legal director at Public Knowledge.
House Republicans cheered Verizon’s challenge, which rests on four arguments. The two that will probably carry the most weight with the court will be that the FCC has abused its regulatory discretion, and that the FCC has exceeded its statutory authority. Congress made the latter argument last year — with large Democratic majorities — as Genachowsko’s first attempt at treating the Internet as a public utility foundered. The same court ruled in favor of Comcast that Congress had not granted the FCC the authority to regulate the Internet, and that without a Congressional mandate, their actions were invalid.
The FCC claims that they have tailored the new rules to fit within their authority, but that may change anyway. A statement from the new leadership in the House Energy and Commerce Committee sent a warning to Genachowski:
“Equally important is putting a check on an FCC that is acting beyond the authority granted to it by Congress. Between our legislative efforts and this court action, we will put the FCC back on firmer ground,” they said.
The message is as clear as one can make it: Stop your regulatory adventurism, or we’ll stop it for you. It may not take a court to settle this question in the short run, especially with the remainder of the FY2011 budget in Republican hands.