As the Sept 9 oral argument date for the net neutrality case at DC Circuit Court of Appeals nears, former Republican FCC commish Robert McDowell predicts that the FCC will at best lose 2-1. Verizon is suing the agency over its ’10 Open Internet Order, which includes rules requiring network transparency, no blocking and no unreasonable discrimination.

Speaking on a Hudson Institute panel, McDowell noted that Judge David Tatel, one of the 3 judges who will hear Verizon’s challenge, wrote in Comcast‘s case against the FCC the opinion that curbed the agency’s earlier attempt to establish net neutrality principles. The DC Circuit ruled in that case that the FCC had not demonstrated sufficient statutory authority to regulate network management practices. Fellow Republican and FTC commish Maureen Ohlhausen agreed: "Keep an eye on Judge Tatel, who she said "will be an important factor" in the case. The 2 other judges are President Clinton appointee Judith Rogers and President Reagan appointee Laurence Silberman.

McDowell, now a Hudson fellow, said the real question before the court is "where is the fence around the FCC’s authority." The Open Internet Order doesn’t limit the FCC’s jurisdiction, something the court pointed out in the Comcast case, he said: "It’s a dangerous place for us to be." In the Comcast case, Judge Tatel warned that an FCC win "would virtually free the Commission from its congressional tether." Such lack of boundaries creates uncertainty that can discourage investment, argued Verizon svp, public policy Craig Silliman.

McDowell said an unrestricted FCC could extend its authority to areas over which it currently has limited or no jurisdiction "as long as the FCC can make the argument that the issue ties to Internet and broadband adoption." He cited areas such as privacy and cybersecurity. Meanwhile, McDowell cited recent reports that ESPN has held discussions with major carriers like Verizon to subsidize mobile broadband. Under such an arrangement, ESPN would pay the carrier to exempt consumption of its mobile content from any monthly data caps. "Let the market experiment," McDowell said.

EDITOR’S NOTE: This story originally appeared in CableFAX Daily. Subscribe here.

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