Verizon, MetroPCS State Case Against FCC Net Rules

First brief filed in court challenge to FCC net neutrality order

By John Eggerton -- Broadcasting & Cable, 7/2/2012 10:13:35 PM

Verizon and MetroPCS have filed the opening shot in their legal battle with the FCC over its codification and expansion of network neutrality openness principles.

Cable operators have not sued. The National Cable & Telecommunications Association was at the table when the compromise rules were hammered out, but like other stakeholders, its support was more like a lack of opposition, since the FCC proposal was an alternative to classification of Internet access as a Title II telecom service subject to mandatory access.

According to a copy of their opening brief to the U.S. court of Appeals for the District of Columbia, Verizon and MetroPCS argue that the FCC order was de facto applying common carrier regulations to broadband Internet access by compelling ISPs to carry Internet traffic of "all comers" and to do so at a price of "zero."

"Thus, the rules directly conflict with the [Communications] Act and cannot stand," they say.

They argue that the FCC lacks statutory authority to do what it did, which they describe as a hodgepodge of provisions to justify the FCC's claim of broad authority. They say that even if the FCC had provided a basis for asserting ancillary authority, it did not demonstrate the rules were "necessary to achieve any statutorily mandated task."

If that weren't enough, they say, the rules are arbitrary and capricious and unconstitutional -- violating the First and Fifth Amendments. The First because "broadband networks are the modern-day microphone by which their owners engage in First Amendment speech," and the Fifth because it was a government takings without compensation.

The FCC, say the companies did not produce a problem sufficient to justify deterring network investment and arbitrarily applied the rules do a single class of service -- it did not apply the rules to search engines or websites, or to wireless services -- even though there are many others in the Internet ecosystem who can be gatekeepers.

Oral argument has not yet been scheduled, but the briefing schedule extends to November.