M+E Daily

By Paul Sweeting

With the U.S. Court of Appeals for the DC Circuit in Washington preparing to hear oral arguments over the Federal Communications Commission’s net neutrality rules, a group of technology companies and online service providers filed a friend-of-the-court brief Thursday urging the court to uphold the FCC’s open internet order. The group includes Netflix, Amazon, Google, DISH, Skype and others that are part of the Open Internet Coalition.

“Most of us have come to rely on the Internet to communicate, exchange ideas, engage in commerce, watch videos, and play games. The Internet’s openness, however, is not a given; it is at its most vulnerable at the gate—the broadband access pipes that are controlled today by a handful of companies,” the group said in its brief. “The Nation sorely needs additional investment in broadband access to widen this gate. Such investment would be significantly hampered, however, if the current gatekeepers could lessen demand for the Internet experience by cherry-picking favorites among the immense Internet ecosystem.”

The case stems from an effort by the FCC to sanction Comcast in 2007 over the ISP’s alleged throttling of certain video-related data traffic on its network. At the time, however, the agency had no formal rules in place governing such practices. Comcast sued and the DC Circuit court (which hears most regulatory challenges) ruled the FCC lacked the legal authority to impose the sanctions.

The FCC responded by developing formal open internet rules under procedures that would give it the legal authority. The rules were approved by a closely divided commission in December 2010 and took effect last year. In July 2011, Verizon and MetroPCS sued the agency again, claiming the new rules still exceeded the FCC’s authority and harmed ISPs’ First Amendment rights to manage their own networks.

From the beginning, Netflix emerged as something of a poster-child for those supporting the FCC’s open internet rules. Net neutrality supporters feared that without such rules, broadband service providers that also provide video service, such as cable operators and Verizon FiOS, could block or degrade over-the-top services like Netflix that compete with the operator’s own pay-TV service.

The Open Internet Coalition was joined in support of the FCC’s position by several public interest groups and law professors, who signed onto a separate brief filed yesterday by the Center for Democracy and Technology. That brief took aim specifically at Verizon’s First Amendment claims, calling it “incorrect as a matter of law.”

Oral argument in the case has not yet been scheduled but is expected to happen in mid-2013.