Verizon is gearing up for a fight over the government’s latest net neutrality plan, which could impose stricter rules on Internet service providers than a previous net neutrality order that Verizon also sued over.
Verizon sued to overturn the Federal Communications Commission’s 2010 Open Internet Order, forcing the FCC to try again. The commission tentatively approved rules in May that would prevent Internet service providers from blocking or degrading traffic from third-party Web services while allowing “fast lane” deals in which companies could pay for faster access to consumers.
But after protest from consumer advocates, FCC Chairman Tom Wheeler is reportedly close to proposing rules in which ISPs would be treated as utilities. This wouldn’t outlaw fast lane or “paid prioritization” deals but would make it easier for the government to block arrangements deemed harmful to consumers. In a blog post today, Verizon General Counsel Randal Milch said the plan “fairly guarantees litigation.”
Lawsuits could come both from ISPs and consumer advocates, he predicted. The FCC’s plan was criticized by consumer advocates because instead of fully reclassifying ISPs as utilities, it takes a “hybrid” approach in which service ISPs offer to content providers would be treated as a utility under Title II of the Communications Act while the service ISPs offer to consumers would remain a lightly regulated information service.
Verizon claimed that the FCC can avoid litigation if it scraps Title II and instead uses Section 706 of the Telecommunications Act as it did in the 2010 rules and in its proposal from May. Verizon’s blog neglected to mention that it sued the FCC when it used Section 706 in 2010, anyway.
“Both the utility regulation crowd and the ISPs have pushed back hard on this approach. Here the FCC has opened itself to credible challenges by all parties,” Milch wrote of the “hybrid” plan. “Again, by departing from the safe harbor of Section 706, the FCC will face strong challenges on the partial move to Title II from those investing in networks. And because the FCC will have to describe why the partial move was necessary, it will open itself to challenge by the utility regulation camp about why a wholesale move to Title II wasn’t equally necessary. Like a full move to Title II, the hybrid approach also fairly guarantees litigation.”