The FCC’s recent loss in the U.S. Court...
The FCC’s recent loss in the U.S. Court of Appeals for the D.C. Circuit in Comcast v. FCC/Tennis Channel could indicate an approaching court defeat for the commission’s Open Internet order, said NetCompetition Chairman Scott Cleland in a blog post…
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Monday (http://bit.ly/18MkIte). Cleland said Verizon’s appeal of the Open Internet order deals with the same issue of the FCC’s definition of discrimination by ISPs as last week’s Tennis Channel decision and the 2010 Comcast v. FCC decision, which also went against the commission. Cleland said between those two cases, there are “six of the fourteen D.C. Circuit judges that so far are known to disagree with the FCC’s interpretation of the law concerning regulation to prevent ‘discrimination’ by ISPs.” Cleland also said some of the language used in the court’s opinion in Tennis Channel could come back to haunt the FCC in the Verizon case. He said Judge Brett Kavanaugh’s analysis of the FCC rules Comcast v. FCC/Tennis Channel as incorporating “antitrust principles” could lead to the commission’s case against Verizon being seen the same way. Cleland said the FCC doesn’t have evidence demonstrating that Verizon has “market power,” which the court’s Tennis Channel ruling said was required for the FCC to regulate a company for discrimination. The FCC order’s focus on “openness” could also present a problem, since the term is not mentioned in any actual statute, said Cleland: “On the margin, this new decision should make Verizon more confident and the FCC less confident in the outcome of” Verizon’s appeal of the Open Internet order.