Some industry observers are making noise (or hedging their bets) as a result of yesterday’s Court decision, which affirmed the FCC’s ability to compel wireless data (information service) roaming for carriers. In the decision they see a Court willing to give a goodly amount of deference to the FCC’s rules, which, in the specific instance, look a lot like common carriage regulations but stop short, in a grey area so to speak, avoiding running afoul of the agency’s previous regulations. From this they surmise that the FCC’s Net Neutrality rule stands a better chance of winning its pending challenge, which is in fact being heard by the same Court.
The “common carriage” discussion in the data roaming decision thus tends to show that the Open Internet rules are not “pure” common carriage rules and thus (assuming 47 U.S.C. § 153(51) applies) prohibited by statute.
That doesn’t mean the Open Internet order has an easy road ahead. The Commission’s fundamental basis for authority is different in the two cases. In the data roaming case the Commission’s power to supervise the wireless industry under Title III of the Communications Act, which gives it authority over broadcasters, wireless carriers, and other entities that use the public airwaves, carried the day. The Commission, unfortunately, chose not to rely on such a clear basis for authority in the Open Internet rules, such as straightforwardly recognizing that broadband is a telecommunications service. While ultimately the Open Internet rules are legally sound the FCC’s course of action has set it up for a number of legal attacks it could have avoided. However, given the language about common carriage in today’s data roaming decision, that particular line of argument seems less likely to get traction.
While I think it is a fool’s errand to make bets on any Court’s ruling (as we saw with the Affordable Care Act this summer at the Supreme Court), I tend to agree with Scott Cleland on this one (even though those bringing the suit against the FCC on the Net Neutrality rule – Verizon and MetroPCS – have asked the Court for time to adjust their argument to take into account yesterday’s ruling). Cleland opines that, though the FCC did score a significant victory yesterday, the winding way it got accomplished will not be all that helpful on its Net Neutrality rule, adding that the same Court previously ruled:
…[T]he FCC does not have the “authority to regulate an Internet Service Providers’ network management practices” and that the FCC does not have the “statutorily mandated responsibilities” to do so…
…[Meaning that, while] some may read these tea leaves differently [due to yesterday's data roaming decision], they still have to overcome the difficult facts that the Court has already decided the basic jurisdictional authority question against the FCC in the first instance…
Stated differently – with data roaming, the FCC had statutory authority, a congressional tether; with Net Neutrality, no such authority or tether exists. And that makes all the difference no matter how deferential the Court appeared yesterday.