T-Mobile Still Must Decide What to Do About MetroPCS’s Net Neutrality Appeal
With T-Mobile’s acquisition of MetroPCS complete, T-Mobile now must decide whether it will continue the 2011 MetroPCS challenge to the FCC’s December 2010 net neutrality rules. MetroPCS and Verizon Wireless filed separate challenges to the order, which have been joined into a single case before the U.S. Court of Appeals for the District of Columbia Circuit.
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In an FCBA seminar Thursday on the net neutrality order, Public Knowledge Senior Vice President Harold Feld said what T-Mobile will do remains unclear. “Now T-Mo actually has to make a decision,” he said. “They either have to file a motion, pro forma, to say, ‘Metro doesn’t exist anymore; we now stand in their stead.’ Or they can withdraw from the case. I don’t think that would make much of a difference one way or the other because Metro’s argument were kind of like Verizon-lite.” T-Mobile did not have a comment Friday.
Feld said it’s unclear why the appeal still doesn’t have a court date. “Nobody knows why it’s taking so long now,” he said. “The briefings have been done for a while now. Nobody knows why it’s taking so long to schedule oral argument. The simplest and most logical explanation is that there’s a lot of vacancies on the D.C. Circuit and it’s backed up.” The FCC’s cable ownership limits, part of a challenge to the 1992 Cable Act, didn’t get argued until 1999, he noted.
A key question before the court will be how the court views FCC’s claims of ancillary authority, Feld said. “The whole point about ancillary authority is that… Congress said, ‘Hey, FCC, all this communications stuff is hard, it’s complicated, this is a dynamic field, we expect a lot of different things to come up. You just take care of it.” The rule gives the FCC “broad power, as long as it comes under the Communications Act,” he said.
Feld noted that at one point the courts handed down a stream of decisions defining ancillary authority. “We have a very active ancillary authority jurisdiction and a bunch of case law around it from about 1969 to about 1984 when the Congress passed the Cable Act so [the FCC] stopped regulating cable under ancillary authority,” he said. “Ancillary authority sort of went into this deep freeze.” The question “came back again in the Comcast case,” he said. In the 2010 case the D.C. Circuit said the FCC does not have ancillary jurisdiction over Comcast’s Internet service under the language of the Communications Act. “The D.C. Circuit, as is its wont, was not entirely clear about how it was interpreting the nature of ancillary authority, whether it was broad delegation, narrow delegation,” he said. “It made it clear that it needed to be more explicitly tied to an explicit delegation and it made it clear that if it was communications-related it was in the FCC’s overall jurisdiction.” Feld said the 10th U.S. Circuit Court of Appeals, meanwhile, will be weighing in on ancillary service with regard to FCC authority in regards to the FCC’s 2011 USF/intercarrier compensation reform order.
Also at the seminar, former FCC Commissioner Kathleen Abernathy, executive vice president at Frontier, said if the net neutrality order is upheld it would be a relief to most of the commission. “Then you say, ‘Thank God, I don’t have to go through this again,'” she said. “The biggest problem that all the commissioners have… is that the statute doesn’t match the reality of the technology and it’s just a nightmare every time you get into one of these debates.”
Commissioners are left having to debate “what’s an information service versus a telecommunications service,” Abernathy said. “There is no other country in the world that has anything called an information service. I'm not sure it’s a thing. This is a made up phrase. We then take it and run with it as if it’s a thing. It’s not anything.” Commissioners realize “I was given regulatory authority based on a time when there was a wire to the home for a phone call and that’s my authority now, so how am I going to play in this world where technology, as it should, is moving ahead,” she said.
Commissioners face a tough task if the order is overturned by the court, Abernathy said. “The chairman will get together with his or her general counsel and sit there and talk through the various options based on whatever the court sent back,” she said. “Meetings will take place with the other commissioners. There will be much handwringing. The Common Carrier Bureau will be miserable. They'll come up with something and try a do-over.”