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Could Data-Roaming Decision Offer Clue on Net-Neutrality Case? Could Data-Roaming Decision Offer Clue on Net-Neutrality Case?

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Could Data-Roaming Decision Offer Clue on Net-Neutrality Case?

December 4, 2012

Some telecom industry watchers say Tuesday’s federal Appeals Court decision upholding the Federal Communications Commission’s data-roaming rules offers some hope that the same court could find the agency’s network neutrality rules are legal.

A three-judge panel on the U.S. Court of Appeals for the District of Columbia rejected a challenge from Verizon Wireless to the FCC’s rules requiring wireless operators to provide access to their networks to other providers so their customers can text or access the Internet on their mobile devices when outside their carrier’s network area.

Some industry observers say the ruling could provide hope to those who favor net neutrality, which bars broadband providers from discriminating against Internet content or applications. Verizon, along with MetroPCS, has challenged the FCC’s net neutrality rules, which were approved in December 2010. The case is pending before the same court.

Communications lawyer Andrew Schwartzman noted that both cases highlighted “similar issues with respect to the commission’s exercise of broad jurisdiction and to its determination that open Internet rules do not turn Verizon into a common carrier.”

The investment-research firm Stifel Nicolaus said the ruling bode well for the FCC on the net neutrality order. “The decision could provide some encouragement for the FCC in litigation over the agency’s Open Internet (net neutrality) order, which is also being challenged by Verizon as well as MetroPCS as lacking authority, among other things,” the firm said in a research note on Tuesday. “The FCC’s Title III broadband authority over data roaming could prove useful at least to its defense of the Open Internet order’s provisions affecting wireless broadband, though that authority does not cover FCC regulation of wireline broadband.”

In a statement praising the data roaming ruling, FCC Chairman Julius Genachowski noted that “unanimous decision confirms the FCC’s authority to promote broadband competition and protect broadband consumers.”

However, Jeff Silva, a telecommunications analyst with Medley Global Advisors, cautioned against reading too much into the decision.

“I would urge extreme caution in trying to extract too much predictive value from the data roaming decision in so far as what the appeals court might do with net neutrality because in appeals and legal matters generally so much depends really on the facts, the legal precedent, legislative history and so forth,” Silva said.

Judge David Tatel, who submitted the data-roaming decision on behalf of the three-judge panel, was the same jurist who ruled against the FCC on a network-neutrality case in April 2010. In that case, the court ruled against the commission for disciplining Comcast for violating the agency’s open Internet principles. That decision forced the FCC to revise its approach to the issue and led to the rule it approved in December 2010.

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