Court Gets Another Crack At Net-Neutrality Rules

ARGUMENT SET ON CHALLENGE TO OPEN-INTERNET ORDER
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WASHINGTON — The U.S. Court of Appeals for the D.C. Circuit gets another shot today (Sept. 9) at the government’s effort to regulate network neutrality.

It will also hear from the same attorney who helped Comcast overturn the Federal Communications Commission’s BitTorrent decision, the first time the court considered the agency’s authority to regulate Internet access.

Helgi Walker, then representing Comcast, argued back in 2010 that the FCC had no rule on which to pin a finding that barred Comcast from interfering with customers’ access to peer-to-peer file sharing via services such as BitTorrent, nor was there any statute to back such a rule. The FCC was enforcing its four Internet openness principles when it found Comcast’s network management of peer-to-peer traffic to be unacceptable.

FCC LOST IN 2010

Those principles are now rules thanks to the FCC’s 2010 Open Internet Order, but the same U.S. Appeals court that threw out the agency’s Comcast decision will hear Walker’s latest foray. The first time around, the court was unpersuaded that the FCC could use broad ancillary authority, rather than express congressional authority, to regulate network management.

“That is the way they addressed the first one [BitTorrent], but there is no obvious place in the law that the FCC has direct authority over broadband providers, which has been an unregulated information service,” Scott Cleland, chairman of NetCompetition, said.

Walker is back, this time representing Verizon Communications, the only litigant left in the challenge to that order. Cellular provider MetroPCS had also sued the commission, but dropped the suit after its acquisition by T-Mobile.

“The facts and the law are on Verizon’s side,” Cleland said.

Comcast and other operators stayed out of the fight this time around, having been at the table when the Open Internet Order was struck as a compromise to then-FCC chairman Julius Genachowski’s threatened classification of Internet-access service as a telecommunications service subject to common-carrier regulations — the dreaded Title II option considered “nuclear” by cable operators.

Cable companies weren’t in love with the Open Internet Order, but found it preferable to the alternative. They argued that it essentially told them to do what they were already doing. The order also explicitly allowed for usage-based pricing and did not apply net neutrality to specialized services. Otherwise, cable companies would likely not have acquiesced.

While public-interest groups Free Press and Public Knowledge have complained about various issues they see as related to network neutrality — including usage-based billing and Comcast’s exclusion of content over delivered Xbox game consoles from counting toward any usage-based pricing — neither has filed a formal network-neutrality complaint in the almost three years since the order was adopted. But that does not mean the rules were not necessary, Public Knowledge senior vice president Harold Feld said.

FACETIME FLAP

“We participated with Free Press in the initial notice of complaint to AT&T about their initial plan to block [Apple’s video-chat app] FaceTime to some tiers of service,” Feld said. “Under the rules, the complainant and the party against whom the complaint is issued are supposed to attempt to work out the problem before asking for FCC adjudication. We discussed with AT&T why they had not made FaceTime available to all tiers of data service, and AT&T agreed to make the app available to all tiers — which they did. Or, in other words, the process worked.”

Public Knowledge filed an informal complaint against Comcast over NBCUniversal merger conditions, unrelated to open-Internet conditions. “Other than that, we have not had any reason to file a complaint,” Feld said.

Public Knowledge said it, too, held off on a formal complaint after AT&T made the app available. “There is always the temptation to say: ‘Look, there were no violations of the rules, so why do we need them,’ ” Matt Wood, Free Press policy director, said. “But the very purpose of the rules is to change behavior, not to lead to complaints or people getting fi ned or hauled into the FCC.”

TAKEAWAY
The attorney who helped Comcast overturn the FCC’s BitTorrent decision is now poised to challenge the agency’s Open Internet Order in a U.S. Appeals Court.

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