Verizon has filed a lawsuit challenging the authority of the FCC to impose the net neutrality rules approved last month. The question boils down to interpreting the powers granted to the FCC by Congress, and Verizon is hoping to find a sympathetic court that sees things its way.
In a press release about its lawsuit, Verizon explains its position. “We are deeply concerned by the FCC’s assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself. 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.”
However, the FCC has a fairly broad–yet clear–mandate from Congress. According to the FCC site, “The FCC was established by the Communications Act of 1934 and is charged with regulating interstate and international communications by radio, television, wire, satellite and cable. The FCC’s jurisdiction covers the 50 states, the District of Columbia, and U.S. possessions.”
Unless Verizon has figured out a way to get its network traffic from Point A to Point B without using “radio, television, wire, satellite, or cable,” it seems that the FCC is well within its charter to monitor and regulate those activities.
Leading up to the actual decision by the FCC to implement an official net neutrality framework, this comment from Philip Lieberman, President of Lieberman Software, summed up the situation nicely. “Everyone who owns the pipes wants more money, and everyone who uses them wants to pay less. Some who use the pipes and make money don’t want to pay anything at all. It is very much like the highway system where the government has to get involved to promote commerce and take control over the impulses of greed and unrestrained capitalism.”
It seems that Verizon has gone out of its way to find a sympathetic court. It is no coincidence that Verizon filed the suit against the FCC in the United States Court of Appeals for the District of Columbia. It just happens to be the court that sided with Comcast against the FCC–issuing a decision that the FCC had overstepped its authority in sanctioning Comcast for discriminating against specific network traffic.
That decision was sort of the “shot heard round the world” for net neutrality, and Verizon obviously hopes to get some sort of “home court” advantage. In order to file the lawsuit in that court, Verizon seems to be performing some legal acrobatics to interpret the net neutrality guidelines as a “modification” of the FCC licenses. It just so happens that challenging regulations can be done in any court, but opposing “modifications” must be done specifically in this one.
Andrew Jay Schwartzman, Senior Vice President and Policy Director of Media Access Project, takes issue with the Verizon tactic. “Under this bizarre legal theory, virtually every FCC decision would wind up in one court. Verizon has made a blatant attempt to locate its challenge in a favorable appeals court forum. The company’s theory assumes that all agency actions changing rules are ‘modifications’ to hundreds of thousands of licenses. This would insure the case remains in the District of Columbia Circuit, and keeps others from seeking review in different courts.”
Based on the logic of the arguments put forth by net neutrality opponents such as Verizon, the very existence of the FCC, and its efforts to monitor and regulate commerce, should have doomed television, radio, and phone networks to failure. The flip side being, if the FCC authority over broadband communications and the Internet is rejected, then its authority over communications at all–including television, radio, and phone–is in question as well.
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