FCC Says Court's Data Roaming Call Buttresses Open Internet Order

Says court decision shows Internet-related rule justified by commission power to modify licenses

By John Eggerton -- Broadcasting & Cable, 1/7/2013 3:28:40 PM

The FCC says that it was well within its authority to impose a "no blocking" network neutrality regulation on wireless carriers in its Open Internet order, and, as expected, is pointing to a recent (Dec. 4) data roaming court case (Cellco Partnership v. FCC) to buttress its defense of the rules.

In a brief to the U.S. Court of Appeals for the D.C. Circuit, the commission pointed to that same court's conclusion that the FCC had the authority to require data roaming stemming from its authority to "'[p]rescribe the nature of the service to be rendered' by the holders of FCC-issued spectrum licenses." Verizon had challenged that decision as well.

The FCC rule in question required mobile data providers to offer roaming agreements to competitors on "commercially reasonable" terms, one of many FCC actions to try and spur mobile broadband. Verizon challenged the requirement, saying the FCC lacked the authority to issue that mandate. The court did not agree, which decision became fodder for the FCC in the Open Internet order challenge by Verizon and MetroPCS.

Following that roaming decision, Verizon asked for an extension of the briefing schedule for its network neutrality challenge so it could argue why the court's data roaming decision was not precedential in the neutrality case.

The FCC was responding to that argument in its brief, where it contends that the same authority the court upheld in data roaming decision undergirds its Open Internet order.

That Open Internet order was primarily focused on nondiscrimination and other access requirements on wired, not wireless, broadband, but did apply a no-blocking provision to wireless. While cable operators did not challenge the network neutrality rules, Verizon Wireless did, calling it Internet regulation that exceeded the FCC's authority.

But the FCC says the roaming decision confirms that the Internet order "is within the Commission's independent power to modify licenses (including by rulemaking)."

"By setting basic 'rules of the road' establishing that wireless broadband Internet access providers may not block lawful data traffic in using their FCC-licensed spectrum," the FCC argues in its brief, "the Commission's Open Internet Rules likewise 'prescribe the nature of the service to be rendered' by the holders of those licenses," said the FCC.