Verizon's Milch Emails Wheeler About 'Big Dog' Remark

to say there’s one way to avoid having ISPs barking in court: Communications Act Section 706, an ex parte filing said. Saying he’d seen reports of Wheeler’s “view of the inevitability of litigation challenging the Commission’s eventual Open Internet rules,” Randal Milch, Verizon general counsel, included a blog post he’d written. Milch’s post describes why “Open Internet rules based on Section 706, and which prohibit 'harmful paid prioritization,’ will not be the object of a successful court challenge -- by Verizon or anyone else,” said the email, posted as an ex parte filing Tuesday in docket 14-28. Under a Title II approach, “the ISPs, and perhaps some in the tech industry, will have no choice but to fight the sudden reversal of two decades of settled law,” Milch wrote in the Nov. 4 blog post. Title II proponents could also sue “if the FCC forbears from too many arcane common carrier rules for their taste (and to keep their fund raising pipeline flowing),” he wrote. Should the FCC take a Section 706 approach, Milch’s blog post said, “all of the major ISPs and their trade associations have conceded that the FCC can lawfully prohibit harmful paid prioritization on this basis -- effectively waiving their ability to challenge the FCC’s authority to do so and taking them out of the litigation path.” USTelecom has said it would be “compelled” (see 1410310050), and AT&T has said it would “expect” to challenge a Title II approach in court. Opinions varied among those involved in the debate about whether Wheeler’s comment revealed the path the agency is considering. AT&T, USTelecom and Verizon declined to comment. One Title II opponent said Wheeler’s concern about a court challenge indicated the agency is moving toward some form of a Title II approach because the prospects of an ISP legal challenge would be moot under a Section 706 approach. Free State Foundation President Randolph May disagreed in an email to us, but said “I am hopeful he's beginning to recognize that Title II, even in hybrid form, is just way too problematical.” Public Knowledge Senior Vice President Harold Feld said he didn’t read much into the remark, describing it as a "'Washington poker face.’ Wheeler is well aware that any statement he makes will get scrutinized for clues. But he can't refrain from comment because people would try to figure out what his refusal to say anything means. So 'someone will sue, so we want the best Order possible' is about as safe as a prediction as possible,” Feld said. Free Press, in a letter to the FCC, posted Monday as an ex parte filing, again disputed the methodology used by economists Kevin Hassett and Robert Shapiro in a study submitted to the commission by USTelecom, saying capital investments by broadband providers could decline by as much as nearly a third over the next five years if the FCC takes a Title II approach. Hassett and Shapiro defended their study to us at the time (see 1411190035).