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FCC for the Defense

FCC for the Defense 1/13/2013 7:00 PM Eastern

WASHINGTON — Lawyers for the Federal Communications Commission are “roaming” into another court case to defend the agency’s party-line vote to impose network-neutrality regulations.

The FCC is trying to leverage the U.S. Court of Appeals for the D.C. Circuit’s ruling in a case involving data roaming to buttress arguments for its Open Internet order, which has been challenged in the same court.

In a brief to the D.C. Circuit last week, FCC lawyers said the commission was well within its authority to impose a “no blocking” network-neutrality regulation on wireless carriers in its Open Internet order, and, as expected, is pointing to the data-roaming court case decided Dec. 4, Cellco Partnership v. FCC, to buttress its defense of the rules.

The commission pointed to that same court’s conclusion that the FCC had the authority to require data roaming, stemming from its authority to “ ‘[p]rescribe the nature of the service to be rendered’ by the holders of FCC-issued spectrum licenses.” Verizon Communications had challenged that decision as well.

The FCC rule in question required mobile data providers to offer roaming agreements to competitors on “commercially reasonable” terms, one of many FCC actions to try and spur mobile broadband. Verizon challenged the requirement, saying the FCC lacked the authority to issue that mandate.

The court did not agree, and its decision became fodder for the FCC in the Open Internet order challenge by Verizon and MetroPCS.

Following that roaming decision, Verizon asked for an extension of the briefing schedule for its networkneutrality challenge, so it could argue as to why the court’s data-roaming decision should not serve as precedent in the network-neutrality case.

The FCC was responding to that argument in its brief. It contends that the same authority the court upheld in the data-roaming decision undergirds its Open Internet order.

That Open Internet order was primarily focused on nondiscrimination and other access requirements on wired broadband, not wireless, but it did apply a noblocking provision to wireless carriers.

While cable operators did not challenge the networkneutrality rules — they were preferable to the threatened classification of high-speed Internet access as a common-carrier service under Title II — Verizon did take the commission to court. It claimed the rules were Internet regulation that exceeded the FCC’s authority.

The FCC has said the roaming decision confirms that the Internet order “is within the commission’s independent power to modify licenses (including by rulemaking).”

“By setting basic ‘rules of the road’ establishing that wireless broadband Internet access providers may not block lawful data traffic in using their FCC-licensed spectrum, the commission’s Open Internet Rules likewise ‘prescribe the nature of the service to be rendered’ by the holders of those licenses,” the FCC said in its brief.

The FCC is nonetheless believed to have an uphill battle with the D.C. Circuit.

Blair Levin, a former colleague of FCC chairman Julius Genachowski and architect of the broadband plan, has predicted that Verizon will win its challenge, given that the D.C. Circuit is historically tough on the FCC. It was the D.C. Circuit that threw out the agency’s Comcast-BitTorrent decision, which prompted the FCC to adopt the Open Internet order.

September