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What Court Data Roaming Decision Means for FCC Open Internet Order

While the D.C. Circuit Court of Appeals gave the FCC a significant win in upholding the FCC's Data Roaming Order, the incremental, serpentine, and limiting way the court did it suggests that this same Court will likely not uphold the FCC's sweeping assertion of legislative-like Internet regulation authority in its Open Internet Order.

In upholding the Data Roaming Order, the Court was faced with a set of facts where the FCC already had clear authority to require mobile voice roaming and the question was whether the FCC had enough authority to extend it to data roaming. In excruciating legal detail, the Court explained why the FCC had the Title III radio authority for this limited action and why the FCC "warrants deference" in this "gray area" of determining when a service is or isn't common carrier. Nevertheless, the court warned the FCC to not try and overreach beyond the narrow boundaries that the court allowed.

Simply, the court gave the FCC more leash in this set of circumstances, but still warned they remained on the court's leash.

  • (Interestingly the 1934 radio authority, 303 (b) and 303 (r), that the Court agreed that the FCC had was radio-broadcast-station regulatory authority that predated the wireless phone by fifty years, the Internet by 62 years and smart-phones by 72 years. Ironically, the obsolete 1934 law on which the FCC and the Court are relying delayed the innovation and commercialization of mobile data service for at least twenty years.)

There are several reasons why this Data Roaming Order decision does not mean the FCC will win the Court challenge of its Open Internet Order.

First, the FCC Open Internet Order is basically a do-over of the Comcast vs. FCC decision by this Court. This Court already decided in April 2010 that the 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.

Second, the Court, in deciding if the FCC had jurisdiction for its Data Roaming Order, said: "we begin -- and end -- with Title III." The Court, in deciding if the FCC had jurisdiction for its Comcast vs. FCC decision, said: "we begin -- and end -- with Comcast's jurisdictional challenge." Simply, the relevant precedent for this Court in deciding the Open Internet Order appeal will be Comcast vs. FCC, not the Data Roaming decision.

Third, unlike in the Data Roaming decision where the FCC narrowly crafted their decision to be sufficiently limited to pass Court muster, the FCC Open Internet Order went so far as to effectively legislate a third and entirely new separate and distinct regulatory classification called: "Broadband Internet Access Service" (BIAS) -- beyond the mutually exclusive statutorily defined classifications of "telecommunications services" and "information services." To win the case challenging the Open Internet Order, the FCC has to convince this Court why it was wrong in the first instance, especially when the FCC did not bother to appeal its loss to the Supreme Court.

Fourth, the FCC has not cited where in the law that the Congress has delegated the FCC the authority to mandate and enforce "openness" on the Internet when the law does not define "open" or "openness" and the word "open" has over fifty different definitions in the English language. Moreover, the FCC is effectively changing U.S. communications policy from the 1996 Telecom Act's purpose of "promoting competition," to the FCC Open Internet Order's purpose of "preserving the free and open Internet."

Fifth, unlike the Data Roaming Order which implicated an arcane "gray area" "warranting deference" to the FCC, the issue of the FCC's jurisdiction to set new communications policy for net neutrality (an "open Internet") is by no means a "gray area" warranting deference, because the U.S. House of Representatives, in a statutory process, passed a very rare Resolution of Disapproval of the FCC's Open Internet Order. The House officially asserted it was Congress' responsibility alone to mandate regulatory responsibilities for the FCC and the Internet, and to set fundamentally new U.S. communications policy. The House even passed a bill to defund FCC implementation of the FCC Open Internet Order.

In sum, the FCC did win a significant victory in extending its regulatory authority to mobile data roaming, but the way they won it does not help the FCC much in trying to win to uphold the FCC Open Internet Order.

While some may read these tea leaves differently, 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 and that the U.S. House of Representatives formal Resolution of Disapproval officially repudiated the FCC's claim that they were exercising existing "statutorily mandated responsibilities" that Congress supported.

The bottom line here is that the FCC's Open Internet Order is still likely to be overturned by the D.C. Circuit Court of Appeals on a similar jurisdictional basis that it overturned the FCC's net neutrality action in Comcast vs. FCC.

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