Verizon's New Challenge Highlights FCC's Failure To Reclass Broadband

by Wendy Davis, Jan 21, 2011, 6:00 PM

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The same day that the Federal Communications Commission voted 3-2 to enact neutrality regulations, Verizon vowed to challenge the move in court. This week, the telecom made good on its threat.

In papers filed with the U.S. Court of Appeals for the D.C. Circuit, Verizon argues that the FCC lacks the authority to require that broadband providers follow open Internet rules. The telecom also argues that the agency abused its rulemaking discretion in passing the regulations.

Verizon claims it's entitled to appeal the order immediately on the theory that its licenses were modified by the new regulations.

The rules passed by the FCC last December are similar to the proposal that Verizon and Google floated last year, but with a few key differences.

Verizon and Google proposed that only wireline networks should be required to follow some open Internet principles. Specifically, the Verizon-Google principle called only for the wireline networks to avoid blocking sites or services, but would have allowed paid prioritization -- or fast lanes for so-called "specialized services."

Instead, the FCC banned wireline providers from blocking material and also from engaging in unreasonable discrimination -- which can include paid prioritization. And the FCC also prohibited wireless providers from blocking sites and competing apps.

What's more, Verizon and Google said that Congress should pass legislation, not that an administrative agency like the FCC should issue new rules.

Verizon is also asking that its case be heard by the same three judges who ruled last year that the FCC lacked authority to sanction Comcast. Those judges said that the FCC has no jurisdiction to enforce neutrality rules because it currently considers broadband as a Title I information service, and not a Title II telecommunications service

Verizon argues that its appeal "presents the same basic question of the FCC's statutory authority over broadband Internet access services at issue in Comcast" and that the judges who ruled in favor of Comcast are "already highly versed in the substantial body of legal material relevant to this continuing controversy."

If those judges accept this case, it's hard to imagine that they would do anything other than toss the FCC's new rules. Of course, the FCC left itself vulnerable to just this kind of challenge when it attempted to pass neutrality regulations without first reclassifying broadband access as a telecommunications service, regulated under Title II of the Telecommunications Act.

Should the FCC want to pass neutrality rules that have a shot at withstanding a legal challenge, the agency might have no choice but to reclassify broadband access as a Title II service.

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