Verizon told the FCC in a white paper filed Oct. 30 that since all the major providers and trade associations agree that the FCC has authority under Sec. 706 to ban anticompetitive paid prioritization, using Title II authority would be “gratuitous” and likely not withstand court challenge.
It repeatedly cites the D.C. court that earlier this year threw out most of the FCC’s Open Internet order.
It says calling broadband a common carrier doesn’t make it so. “The D.C. Circuit long ago rejected the proposition that the Commission has ‘unfettered discretion . . . to confer or not confer common carrier status on a given entity depending upon the regulatory goals it seeks to achieve,” said Verizon. “According to some forty years of case precedent, what is determinative is the nature of the service that actually is being offered to customers: ‘A particular system is a common carrier by virtue of its functions,’ the D.C. Circuit has explained, ‘rather than because it is declared to be so.'”
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