The FCC won a big legal victory today, when the DC Circuit denied a challenge by Verizon to its data roaming order. The data roaming order itself is important, since it updates the Commission's long-standing voice roaming rules to include wireless Internet access services. It allows smaller carriers to offer nationwide service, and it makes it so that all users can travel around the country without losing service or incurring high bills.
But many people immediately started thinking about what the implications of this decision are for the FCC's Open Internet rules. These rules are currently being challenged by (once again) Verizon, in the same court. (Like in the data roaming case, PK has filed a brief in that case as well.) Not only that, Verizon is using many of the same legal theories in the Open Internet case that got shot down in the data roaming case.
Some of these legal theories are not that interesting to recount--whether the order is a "regulatory taking," or whether it was "arbitrary and capricious." These arguments get trotted out in every challenge to an agency order, and sometimes they have merit, but they usually don't. This time is no exception, and I don't think these arguments will carry the day in the Open Internet order, either.
But there is one interesting parallel. There's a statute relevant to the data roaming rules which says that "A person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this chapter." 47 U.S.C. § 332(c)(2). Commissioner Meredith Baker, who dissented from the data roaming order, had argued that this statute meant "no uncertain terms" that this meant that the data roaming rules were illegal. We now know that she was wrong, but the argument is not crazy.
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Via Chuck Sherwood, Senior Associate, TeleDimensions, Inc