Tatel and Judge Laurence Silberman asked several questions about section 706 of the Telecom Act, with Tatel suggesting that section gives the FCC broad authority to encourage broadband deployment and competition.
But Walker argued that the FCC was grasping for legal authority for the net neutrality rules when citing section 706. It's a reach to suggest that net neutrality rules encourage broadband deployment, when they may do the opposite, she said.
Citing section 706 is "an after-the-fact rationalization," she said. "It's bootstrapping." The deregulatory language of section 706 "can't bear the weight of these rules," she added.
With Tatel coming back several times to a question about whether the court should uphold the antiblocking rule but reject the antidiscrimination rule, Lev suggested the rules don't explicitly prevent broadband providers from entering into priority traffic agreements with websites. The commission, in the rules, said such commercial agreements would raise significant concerns, he noted.
Much of the push for the net neutrality rules was to prevent broadband providers from charging websites, Tatel counted. If pay-for-priority agreements are allowed, "then I don't understand why the FCC approved these rules," he said.
Walker urged the court to reject the entire set of net neutrality rules, saying the antiblocking and antidiscrimination rules work together. "For the court to essentially blue pencil this order would be outside this court's common practice," she said.
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