Commentary

Verizon Hints It Will Sue If FCC Treats Broadband As Utility

Web companies like Netflix, Democratic politicians, consumer groups and other net neutrality advocates have spent much of this year urging the Federal Communications Commission to reclassify broadband service as a public utility.

The neutrality advocates say that categorizing broadband as a utility -- which involves classifying it as a “Title II” telecommunications service -- will allow the FCC to impose the same kinds of common-carrier rules that require telephone companies to put through all calls.

Not surprisingly, broadband carriers say oppose this idea. On Wednesday, Verizon went one step further than merely voicing criticism: The company submitted a white paper arguing that reclassification “would be unlikely to survive appeal.”

“Any attempt to 'reclassify' broadband Internet access service as a Title II telecommunications service would be a radical and risky change to the Commission’s long-standing policy with significant harmful consequences,” Verizon says in a letter accompanying its paper.

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The company goes on to outline the reasons why it believes the FCC lacks authority to define broadband as a telecommunications service. One of the most significant, according to Verizon, is that the FCC decided more than 10 years ago that broadband was an “information” service. “As a factual matter, the Commission could not reach a different conclusion today,” Verizon argues. “Broadband remains an integrated service offering for accessing, utilizing, storing, processing and retrieving information using the Internet via high-speed telecommunications.”

If anything, Verizon argues, there is even more reason now than 10 years ago to call broadband an “information” service. “New parental controls, for example, allow customers to identify and filter inappropriate content. Multiple e-mail accounts allow customers to store, access, utilize and make available information,” Verizon argues. “And on-line storage services are a common part of broadband Internet access offerings and allow customers both to store information they retrieve on-line and then to access, utilize, and further process that information.”

While Verizon doesn't explicitly say that it will sue the FCC to prevent reclassification, the company strongly suggests it's ready to go to court. “In short, no matter how Title II reclassification is packaged, such action could not withstand judicial review,” the company says in its paper.

The company certainly hasn't shied away from litigation in the past. When the FCC passed net neutrality rules in 2010, Verizon promptly filed suit. Those rules prohibited wireline carriers from blocking or degrading content and from engaging in unreasonable discrimination.

This year, the D.C. Circuit Court of Appeals sided with Verizon and vacated the 2010 neutrality rules on the ground that they effectively subjected broadband providers to common-carrier rules. The court ruled that the FCC lacked authority to impose common-carrier regulations on broadband providers, because was considered an “information” service. That decision spurred advocates to urge the FCC to reclassify broadband.

The FCC hasn't said whether it will do so. But regardless of whether the FCC reclassifies, any neutrality rules it passes will almost certainly face a court challenge -- either from Verizon, other providers or consumer groups.

In other words, questions about net neutrality might remain unanswered for years to come.

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