ArtsWatch: Wireless Providers Take FCC To Court

Mobile broadband companies ask D.C. Appeals Court to neuter FCC's Net neutrality again
January 31, 2011 -- 10:37 am PST
By Philip Merrill /

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Wireless broadband providers Verizon and MetroPCS brought appeals against the Federal Communications Commission before Washington, D.C.'s U.S. Court of Appeals on Jan. 20 and 24, respectively, claiming Net neutrality rules passed by the agency in December exceeded its authority to modify their existing licenses. While restating its commitment to open Internet principles, Verizon said, "We are deeply concerned by the FCC's assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself. We believe this assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors, and consumers." Last April D.C.'s Court of Appeals notably neutered the FCC's "ancillary jurisdiction" over Comcast's Internet traffic management, making the court an attractive forum since the wireless providers are asking for a repeat against the FCC's subsequently claimed legal basis for regulating Internet transmissions. House Commerce Committee Chairman Rep. Fred Upton (R-Mich.), joining with fellow committee members Reps. Greg Walden (R-Ore.) and Lee Terry (R-Neb.), said, "We welcome the decision by Verizon, and hopefully others, to demand their day in court to block the FCC's misguided attempt to regulate the Internet. At stake is not just innovation and economic growth, although those concerns are vital. Equally important is putting a check on an FCC that is acting beyond the authority granted to it by Congress. Between our legislative efforts and this court action, we will put the FCC back on firmer ground." Net neutrality advocates — including Senate Commerce Committee Chairman Sen. Jay Rockefeller (D-W.Va.); House Commerce Committee members Reps. Ed Markey (D-Mass.) and Henry Waxman (D-Calif.); and consumer advocates — expressed their disappointment regarding Verizon's lawsuit and believe FCC intervention is necessary to protect the distinctive freedom creators and consumers have enjoyed to communicate with each other online. Commenting after MetroPCS' later legal action, consumer advocates Free Press said, "What we're seeing are the early signs of a full-scale assault on the open Internet."

On Jan. 26 Rep. Mary Bono Mack (R-Calif.) introduced H.Res. 57 "expressing the sense of the House of Representatives that the United Nations and other international governmental organizations shall not be allowed to exercise control over the Internet." Similar to a resolution introduced in the previous Congress, H.Res 57 was referred to the House Foreign Affairs Committee. In a Jan. 26 letter to Foreign Affairs Committee Chair Ileana Ros-Lehtinen, Bono Mack wrote, "It is widely known that international governmental organizations like the United Nations would like to become the epicenter of Internet governance. It is my strong opinion that we must do all we can to oppose this global governmental attempt to regulate the Internet."

Representing the latest in a long line of efforts to legislate Net neutrality, Sen. Maria Cantwell (D-Wash.) introduced S. 74, the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011, on Jan. 25. The bill was referred to the Senate Commerce Committee. If it were to pass the Senate it would likely stand little chance of passing a House dominated by a Net neutrality-disinclined GOP majority. Cantwell said, "Network neutrality principles are the foundation the Internet was built on.... If we let telecom oligarchs control access to the Internet, consumers will lose."

On Jan. 26 video rental service Netflix took a self-help approach to the Net neutrality issue of timely data delivery when it announced that Charter Communications was doing the best job serving Netflix movie streams to their Internet subscribers. Additional performance statistics were released the next day with Comcast in second place. Many observers believe this sort of marketplace transparency has guaranteed benefits for both consumers and broadband itself.

Consumer advocates European Digital Rights released a report titled "The slide From Self-Regulation To Corporate Censorship" on Jan. 26, arguing that Internet service providers worldwide are being pressured to take on new law enforcement duties in the private sector. In separate but related news, at a House Judiciary Committee hearing on Jan. 25 regarding online customer data retention, Rep. Jim Sensenbrenner (R-Wis.) warned the executive director of the U.S. Internet Service Provider Association that voluntary standards are the only way to avoid federal legislation. Sensenbrenner said, "If you aren't a good rabbit and don't start eating the carrot, I'm afraid we're all going to be throwing the stick at you." Consumer advocates Electronic Frontier Foundation noted its best-practice guidelines for ISPs — recommending minimal customer data retention — were specifically attacked during hearing testimony from Department of Justice Deputy Assistant Attorney General Jason M. Weinstein.

On Jan. 24 President Barack Obama announced his intention to nominate Donald B. Verrilli Jr. as Solicitor General of the United States for the Department of Justice. In February 2009 ArtsWatch commented on his nomination for a lower position at DOJ, "Verrilli is best known for suing file-sharing service Grokster while representing movie studios plaintiffs, suing file-sharing consumer Jammie Thomas while representing the RIAA, and suing Google-owned YouTube while representing Viacom." If confirmed by the Senate, Verrilli will fill the vacancy created when predecessor Elena Kagan moved onto the U.S. Supreme Court.

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