Verizon v. Federal Communications Commission
408 U.S. App. D.C. 92
| D.C. Cir. | 2014Background
- Open Internet Order imposes transparency, anti-blocking, and anti-discrimination rules on fixed and mobile broadband providers.
- Court previously vacated Comcast Order for lack of authority; Open Internet Order replaced it.
- Court examines whether §706(a) and §706(b) provide affirmative authority to regulate broadband providers.
- Open Internet Order relies on Chevron deference to interpret §706(a) and §706(b) as empowering regulation.
- Court distinguishes between statutory authority and prohibitions on common carriage; remands/ Vacates the challenged rules to avoid preemption of common-carrier status.
- Open Internet Order classified broadband providers as information services, not common carriers, affecting the legality of the rules under the Communications Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §706(a) authorizes the Open Internet rules | Verizon: §706(a) is policy only, not independent authority | FCC: §706(a) is affirmative authority to regulate to remove barriers to investment | Yes; §706(a) provides affirmative authority |
| Whether §706(b) authorizes action to accelerate deployment | Verizon: §706(b) lacks clear power to regulate; reliance on deployment metrics | FCC: §706(b) expressly authorizes action to accelerate deployment | Yes; §706(b) provides authority to take action to accelerate deployment |
| Whether anti-discrimination/anti-blocking rules are per se common carriage | Verizon: rules impose common-carrier obligations | FCC: rules do not convert edge providers into customers; targeted to edge-provider traffic | Anti-blocking/anti-discrimination vacated as to per se common carriage; disclosure rules severable |
| Whether disclosure rules are severable from the challenged rules | Verizon: severability not explicit; could be tied to rest | FCC: disclosure rules severable and can stand independently | Disclosure rules severable and upheld; anti-discrimination and anti-blocking vacated |
| Whether the FCC’s factual and economic reasoning supporting the rules is adequate | Verizon: record lacks market-power showing; reliance on speculative benefits | FCC: substantial evidence supports the virtuous circle and openness benefits | Court upholds rational basis of incentives but vacates core common-carrier elements |
Key Cases Cited
- Comcast Corp. v. FCC, 600 F.3d 642 (D.C.Cir.2010) (vacated order for lack of authority; ancillary jurisdiction analysis)
- Brand X Internet Services, 545 U.S. 967 (U.S. 2005) (upheld agency’s classification of cable broadband; deference to agency interpretation of ambiguous statute)
- American Library Ass’n v. FCC, 406 F.3d 689 (D.C.Cir.2005) (limits of ancillary jurisdiction; reasoned decision-making required for reversals)
- Midwest Video Corp., 440 U.S. 689 (U.S. 1979) (common carriage principles; holding that regulators cannot impose per se common carriage on cable operators)
- Cellco Partnership v. FCC, 700 F.3d 534 (D.C.Cir.2012) (common carrier status analysis for roaming data rules; decisions on edge-provider context)