The FCC filed its brief in defense of the network neutrality rules Monday, Sept. 10, telling the U.S. Court of Appeals for the D.C. Circuit that the rules were necessary to prevent broadband providers from "interfering with their customers' ability to use Internet services" and that the commission had the authority to adopt the rules.
In the challenge, launched in January 2011, wireless companies Verizon and MetroPCS argue that the FCC's Dec. 21, 2010, order exceeds its authority, is arbitrary and capricious and an abuse of its discretion, and is unconstitutional as well. It asks that the FCC vacate the order and "provide such additional relief as may be appropriate."
In the 79-page argument, the FCC says the rules were not arbitrary or capricious, nor do they impinge on the First Amendment rights of ISPs, which the FCC argues aren't speakers, per se. "Internet access providers do not engage in speech," the FCC told the court. "They transport the speech of others, as a messenger delivers documents containing speech. Unlike cable systems, newspapers, and other curated media, broadband providers do not exercise editorial discretion. Verizon has defended itself from lawsuits on that very ground. If the First Amendment applies at all, the Open Internet Rules are narrowly tailored to serve important government interests."
While FCC chairman Julius Genachowski told a Senate panel in May the FCC had not received any network neutrality complaints in the six months since the rules had been in effect, the FCC in its argument says that the commission is free to "plan in advance of foreseeable events, rather than waiting to react," particularly since the harms of open Internet violations could be "substantial, costly and irreversible."
Most of the network neutrality rules don't apply to wireless broadband, but the discrimination prohibition that applies to wireless is too much for those companies, as is what they say was the FCC's overreach in codifying any regs.
Cable operators generally didn't love the network neutrality rules either and argued they were unnecessary. But they agreed to the compromise proposal when faced with the alternative of the FCC classifying Internet access as a Title II common carrier service subject to access mandates, an option that remains open since the Title II docket has never been closed.
Final briefs in the court case are not due until November, so there is unlikely to be a decision before the beginning of next year.
The FCC's rules prevent Internet service providers from discriminating against content and applications, subject to reasonable network management. The FCC said it would enforce them on a case-by-case basis via a fast-track complaint process.
They were billed by the FCC majority -- the rules were approved on a straight party-line vote -- as a way to provide increased certainty to broadband users that networks will not be able to interfere with their traffic. The FCC is basing its legal authority on various congressional directives to deploy broadband and ensure competition, including competition with the broadcasters and other competitors whose online content delivery could potentially be discriminated against.