The FCC filed its brief in defense of the network neutrality
rules Monday, Sept. 10, telling the U.S. Court of Appeals for the D.C. Circuit
that the rules were necessary to prevent broadband providers from
"interfering with their customers' ability to use Internet services"
and that the commission had the authority to adopt the rules.
In the challenge, launched in January 2011, wireless
companies Verizon and MetroPCS argue that the FCC's Dec. 21, 2010, order
exceeds its authority, is arbitrary and capricious and an abuse of its
discretion, and is unconstitutional as well. It asks that the FCC vacate the
order and "provide such additional relief as may be
In the 79-page argument, the FCC says the rules were not
arbitrary or capricious, nor do they impinge on the First Amendment rights of
ISPs, which the FCC argues aren't speakers, per se. "Internet access
providers do not engage in speech," the FCC told the court. "They
transport the speech of others, as a messenger delivers documents containing
speech. Unlike cable systems, newspapers, and other curated media, broadband
providers do not exercise editorial discretion. Verizon has defended itself
from lawsuits on that very ground. If the First Amendment applies at all, the
Open Internet Rules are narrowly tailored to serve important government
While FCC chairman Julius Genachowski told
a Senate panel in May the FCC had not received any network neutrality
complaints in the six months since the rules had been in effect, the FCC in its
argument says that the commission is free to "plan in advance of
foreseeable events, rather than waiting to react," particularly since the
harms of open Internet violations could be "substantial, costly and
Most of the network neutrality rules don't apply to wireless
broadband, but the discrimination prohibition that applies to wireless is too
much for those companies, as is what they say was the FCC's overreach in
codifying any regs.
Cable operators generally didn't love the network neutrality
rules either and argued they were unnecessary. But they agreed to the
compromise proposal when faced with the alternative of the FCC classifying
Internet access as a Title II common carrier service subject to access
mandates, an option that remains open since the Title II docket has never been
briefs in the court case are not due until November, so there is unlikely
to be a decision before the beginning of next year.
The FCC's rules prevent Internet service providers from
discriminating against content and applications, subject to reasonable network
management. The FCC said it would enforce them on a case-by-case basis via a
fast-track complaint process.
They were billed by the FCC majority -- the rules were
approved on a straight party-line vote -- as a way to provide increased
certainty to broadband users that networks will not be able to interfere with
their traffic. The FCC is basing its legal authority on various congressional
directives to deploy broadband and ensure competition, including competition
with the broadcasters and other competitors whose online content delivery could
potentially be discriminated against.