AGs say FCC going too far with new rules

John O'Brien Jul. 24, 2012, 10:53am


WASHINGTON (Legal Newsline) - Six state attorneys general say the Federal Communications Commission is exceeding its authority by attempting to regulate broadband Internet providers.

The six filed an amicus brief Monday Verizon's challenge of a 2011 FCC order that they say subjects broadband Internet providers to the same regulation as common carriers like certain telecommunications providers.

They say Congress did not give the FCC the power to regulate information service providers and private mobile service providers.

"Not only is the FCC regulating contrary to expressed intent, it has not identified any plausible, affirmative statutory authority for the FCC to regulate as the order does," the states say.

"Instead, the FCC in the order cites a number of disparate provisions, sharing only one commonality: no one provision standing alone, nor all of them standing together, confers the claimed authority. The FCC's attempt to override the settled judgment of Congress not to regulate in this way should be rejected."

The attorneys general who signed the brief are Republicans Ken Cuccinelli of Virginia, Sam Olens of Georgia, Bill Schuette of Michigan, Alan Wilson of South Carolina and Scott Pruitt of Oklahoma, as well as Democrat Darrell McGraw of West Virginia.

Their brief was filed in the U.S. Court of Appeals for the District of Columbia Circuit.

The AGs say broadband Internet providers fall within the regulatory classification of "information service" providers.

The FCC adopted new net-neutrality rules in 2010, but the District of Columbia Circuit sided with Comcast when it challenged the enforcement of the rules.

Verizon says the new rules it is challenging go even further than the previous set. The AGs say the FCC did not dispute a portion of the Comcast order that said it was duty bound to refrain from common-carrier regulation of broadband Internet providers.

The new rules:

-Require providers to disclose network management practices, performance characteristics and terms and conditions of their services;

-Prohibit broadband Internet providers from blocking lawful content or non-harmful devices and prohibit mobile providers from blocking lawful Web sites or "applications that compete with the provider's voice or video telephony services; and

-Prohibit providers from entering into an agreement with a third party to directly or indirectly favor some traffic over other traffic.

"(C)ourts have uniformly, repeatedly and rightly rejected 'unbounded' interpretations of agency ancillary authority," the AGs wrote.

"That should be the result here in deference both to the express Congressional command to leave the Internet 'unfettered by federal or state regulation' and Congress' implicit direction arising from its refusal to enact so-called net neutrality legislation.

"In short, it is clear that the FCC presently lacks any broad authority over broadband Internet services."

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