Verizon told the FCC in a white paper filed Oct. 30 that since all the major providers and trade associations agree that the FCC has authority under Sec. 706 to ban anticompetitive paid prioritization, using Title II authority would be "gratuitous" and likely not withstand court challenge.
It repeatedly cites the D.C. court that earlier this year threw out most of the FCC's Open Internet order.
It says calling broadband a common carrier doesn't make it so. "The D.C. Circuit long ago rejected the proposition that the Commission has 'unfettered discretion . . . to confer or not confer common carrier status on a given entity depending upon the regulatory goals it seeks to achieve," said Verizon. "According to some forty years of case precedent, what is determinative is the nature of the service that actually is being offered to customers: 'A particular system is a common carrier by virtue of its functions,' the D.C. Circuit has explained, 'rather than because it is declared to be so.'"
Verizon was the only company to challenge the FCC's 2010 Open Internet regulations, which were buttressed by Sec. 706 authority. But Title II has become a bigger part of the conversation around reinstating those rule.
In a White Paper filed at the FCC, Verizon focuses on Title II, saying trying to use common carrier regulations as the legal basis for the authority to regulate broadband, including a "hybrid" approach, is unlikely to stand up in court.
That has been the argument Title II fans have been making about a Sec. 706 approach.
Verizon calls Title II radical and risky, unnecessary and unlikely to survive the court challenge that will almost certainly come if the FCC goes that route. It says that goes double for trying to extend the rules to wireless broadband under Title II.
The FCC did not extend the 2010 anti-discrimination rule to wireless, citing its different network management challenges, but said it could revisit that decision, which it is doing given the rise of mobile as the vehicle of choice for many Internet surfers.
Verizon says the FCC lacks the authority to compel ISPs to operate as common carriers, which is what it says it would have to do. "[T]he ability to compel a broadband provider involuntarily to commit its private property to the use of others would be an extraordinary power raising significant issues of constitutional dimension," Verizon tells the FCC.
Verizon says that the Supreme Court's conclusion in the Brand X decision "that broadband Internet access is an integrated offering is even more true today." It says that having concluded that broadband is an integrated information service that functionally integrates transmission and information, "[a]s a factual matter, the Commission could not reach a different conclusion today."
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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