• by Wendy Davis  @wendyndavis, July 3, 2012

The Federal Communications Commission exceeded its authority by promulgating net neutrality regulations, Verizon argues in new legal papers.

The FCC's open Internet order "imposes classic common-carrier obligations on broadband providers," Verizon says in a 116-page brief filed late Monday with the Court of Appeals for the D.C. Circuit. "This regulation of Internet access service is expressly prohibited by the Communications Act."

The commission's neutrality regulations ban all broadband providers -- wireline as well as wireless -- from blocking sites or competing applications. The regulations also prohibit wireline providers from engaging in unreasonable discrimination. A divided FCC passed the regulations by a 3-2 vote in December of 2010; the rules took effect last year.

Verizon (and MetroPCS, which joined in Verizon's brief) are now asking a federal appeals court to vacate the regulations.

Verizon argues in its papers that the Court of Appeals already ruled in a case involving Comcast that the FCC lacks authority to regulate broadband -- which is classified as an "information" service and not a telecommunications service. In the Comcast matter, the appeals court vacated an order sanctioning the Internet service provider for violating the 2005 neutrality principles by throttling peer-to-peer traffic. At the time, the FCC hasn't yet codified those principles into regulations.

"Rather than proceeding with caution in light of [the ruling in] Comcast, the FCC unilaterally adopted rules that go even farther than its prior action and impose dramatic new restrictions on broadband Internet access service providers," Verizon argues.

Verizon also argues that its free speech rights are infringed by the regulations. "They strip providers of control over which speech they transmit and how they transmit it, and they compel the carriage of others’ speech," the telecom writes.

The company also presses an argument that the order is invalid because it only prohibits ISPs from discriminating, while leaving companies like Google free to return whatever listings they wish in the search results. "The order is under-inclusive because it only applies to a subset of speakers and excludes other participants in the Internet ecosystem, including search portals and app store operators who are similarly able to serve as 'gatekeepers' and possess the same theoretical abilities and incentives to restrict access," Verizon contends.

Some ISPs have argued in the past that search engines also should be subject to the same "neutrality" conditions as broadband providers. But other observers argue that it doesn't make sense to hold ISPs and search companies to the same standard.

"The case for search neutrality is too muddled to be convincing," New York Law School professor James Grimmelmann argues in a piece about the topic. "Search is inherently subjective: it always involves guessing the diverse and unknown intentions of users."