Tuesday, January 14, 2014

Verizon v. FCC - DC Cir - FCC's Open Internet Rules

Verizon v. FCC, DC Cir.
TATEL, Circuit Judge: For the second time in four years, we are confronted with a Federal Communications Commission effort to compel broadband providers to treat all Internet traffic the same regardless of source — or to require, as 4 it is popularly known, “net neutrality.” In Comcast Corp. v. FCC , 600 F.3d 642 (D.C. Cir. 2010), we held that the Commission had failed to cite any statutory authority that would justify its order compelling a broadband provider to adhere to open network management practices. After Comcast , the Commission issued the order challenged here — In re Preserving the Open Internet , 25 F.C.C.R. 17905 (2010) ( “the Open Internet Order” ) — which imposes disclosure, anti - blocking , and anti - discrimination requirements on broadband providers . As we explain in this opinion, the Commission has established that section 706 of the Telecommunications Act of 1996 vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure. The Commission, we further hold , has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic , and its justification for the specific rules at issue here — that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet — is reasonable and supported by substantial evidence. That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti - discrimination and anti - blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.
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