Verizon and MetroPCS have filed the opening shot in their
legal battle with the FCC over its codification and expansion of network neutrality
openness principles.
Cable operators have not sued. The National Cable &
Telecommunications Association was at the table when the compromise rules were
hammered out, but like other stakeholders, its support was more like a lack of
opposition, since the FCC proposal was an alternative to classification of
Internet access as a Title II telecom service subject to mandatory access.
According to a copy of their opening brief to the U.S. court
of Appeals for the District of Columbia, Verizon and MetroPCS argue that the
FCC order was de facto applying common carrier regulations to broadband
Internet access by compelling ISPs to carry Internet traffic of "all
comers" and to do so at a price of "zero."
"Thus, the rules directly conflict with the [Communications]
Act and cannot stand," they say.
They argue that the FCC lacks statutory authority to do what
it did, which they describe as a hodgepodge of provisions to justify the FCC's
claim of broad authority. They say that even if the FCC had provided a basis
for asserting ancillary authority, it did not demonstrate the rules were
"necessary to achieve any statutorily mandated task."
If that weren't enough, they say, the rules are arbitrary
and capricious and unconstitutional -- violating the First and Fifth
Amendments. The First because "broadband networks are the modern-day
microphone by which their owners engage in First Amendment speech," and
the Fifth because it was a government takings without compensation.
The FCC, say the companies did not produce a problem
sufficient to justify deterring network investment and arbitrarily applied the
rules do a single class of service -- it did not apply the rules to search
engines or websites, or to wireless services -- even though there are many
others in the Internet ecosystem who can be gatekeepers.
Oral argument has not yet been scheduled, but the briefing
schedule extends to November.
