Courting Net Neutrality

U.S. Court of Appeals gets another shot at FCC’s bid to regulate net neutrality
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The U.S. Court of Appeals is getting another shot at the FCC’s effort to regulate network neutrality, and it faces the same attorney who helped Comcast overturn the FCC’s BitTorrent decision against the nation’s largest cable operator.

Helgi Walker, then representing Comcast, argued back in 2010 that the FCC had no rule on which to pin its finding on and no statute to pin that rule to if it had one. The FCC was enforcing its four Internet openness principles when it found Comcast’s network management of peer-to-peer traffic to be unacceptable.

Those principles are now rules, thanks to the FCC’s 2010 Open Internet Order. But the same D.C. federal appeals court that threw out the FCC’s Comcast decision will hear Walker’s latest foray. And the court was unpersuaded the first time around that the FCC could use broad ancillary authority, rather than express congressional authority, to regulate network management.

Walker is back, this time representing Verizon, the only litigant left in the challenge to that order. MetroPCS has also sued the commission, but dropped the suit when it was bought by T-Mobile.

While Free Press and Public Knowledge have complained about various issues related to network neutrality, neither has filed a formal network neutrality complaint in the almost three years since the order was adopted.

“There is always the temptation to say: ‘Look, there were no violations of the rules, so why do we need them,” says Matt Wood, Free Press policy director. “But the very purpose of the rules is to change behavior, not to lead to complaints or people getting fined or hauled into the FCC.”

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