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If the judges’ questioning last week was any indication, at least some portions of the Federal Communications Commission’s Open Internet Order could be vacated, with ISPs allowed to charge websites for providing them priority access to broadband subscribers.
That judicial haymaker came in oral arguments Sept. 9 before a three-judge panel of the U.S. Court of Appeals for the District of Columbia of the FCC’s Open Internet Order, which was challenged by Verizon. Judith Rogers, David Tatel and Laurence Silberman were on the bench with Tatel being the only veteran from the 2010 panel that ruled the FCC had not justified its BitTorrent decision against Comcast.
And while cable operators represented by the National Cable & Telecommunications Association said they would not block access to legal content and applications regardless of what the court does, Verizon signaled it was interested in looking into charging edge providers—like, for instance, Google—for speedier access to its customers, and suggested it should have the ability to charge for that access, period.
Judges and Jury
The judges seemed to think the FCC had some role in overseeing Internet access, but two out of three appeared to have problems with the nondiscrimination portion of the FCC’s order. That’s the one that effectively prevents ISPs from charging/providing different levels of service to websites accessed by its subscribers over the public Internet. (The FCC does in fact allow for such arrangements over the non-public net, or so-called specialized services.)
Judge Tatel, who wrote the court’s opinion in the 2010 decision striking down the FCC’s Bit-Torrent decision, said the nondiscrimination clause appeared to be the one with the most problems as it related to the FCC imposing common carrier regulations on an information service, which is out of bounds.
If the FCC ultimately loses the case, it could attempt to classify broadband access under Title II common carrier regs, which would lead to mandatory, nondiscriminatory access. That would, however, trigger major angst and pushback from cable and phone telcos, who see that as the “nuclear” option. An FCC loss might also push Congressional Democrats to step in to clarify the FCC’s authority, with Republicans equally exercised if the FCC made a move to classify broadband under Title II.
“It was a very good day for broadband providers in that two of the three judges strongly signaled that the FCC did not have the authority to mandate common carrier- like anti-discrimination regulation on broadband providers,” said Scott Cleland, chairman of Net Competition, an e-forum supported by broadband interests. Cleland was in the standing-room-only audience for the hearing that included an overflow room for dozens more interested parties.
“Specifically,” Cleland added, “Judges Tatel and Silberman appear to agree that the FCC does not have the authority to force broadband providers to provide their service for free to edge companies.”
With the usual caveats about reading judges’ arguments— given that they sometimes play devil’s advocate—“It sure looks like a reversal,” said one public interest lawyer. “The nondiscrimination rule is likely to be thrown out.” The attorney added that the question appears to be whether the court will also throw out the anti-blocking and transparency rules.
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