09 September 2013

Law in Plain English: Verizon v. FCC

This is one in a series of posts designed to describe court decisions in plain English. For similar posts, click here.

To see the full text of Preserving the Open Internet, click here. For a previous discussion of the net neutrality issue when Preserving the Open Internet was released in December 2010, see here. To see all of my posts tagged with net neutrality, click here.

Docket No.: 11-01355

Argument: September 9, 2013 (Audio)

Discussion: In Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010), the D.C. Circuit vacated the Federal Communication Commission’s first effort to effect regulation of broadband Internet service through a set of rules known collectively as "net neutrality." The Court ruled that the FCC, in promulgating the rules, exceeded its statutory authority. Later that year, the FCC passed Preserving the Open Internet, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192 (Sept. 23, 2011) (“Order”). Verizon alleges that the FCC again has exceeded its statutory authority. On the other hand, the FCC rested its authority in Sections 706(a) and 706(b) of the Telecommunications Act of 1996, which "encourage[s] the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans,” and allows the Commission to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market” if reasonable and timely” deployment is not occurring.

Issue: The questions before the DC Circuit are: (1) whether the Order imposes common-carriage requirements on services that are statutorily exempt from such requirements or otherwise exceeds the FCC's statutory authority; (2) whether the Order is unconstitutional; and (3) whether the Order is arbitrary and capricious.

Holding: TBD
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