FCC Says Court's Data Roaming Call Buttresses Open Internet OrderSays court decision shows Internet-related rule justified by commission power to modify licenses 1/07/2013 03:28:40 PM Eastern
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
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could argue why the court's data roaming decision was not precedential in the
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