Net Neutrality

Net Neutrality Heads to Court & Congress

Now that the vote is over, the FCC's controversial Restoring Internet Freedom Order faces a new set of challenges. The court of public opinion has largely weighed in against the ruling, which repeals net neutrality regulations set in place under the 2015 Open Internet Order. However, the perspective of the country's highest court of law is still an open question, as is the majority viewpoint in Congress.

Federal Communications Commission (FCC) Chairman Ajit Pai and his fellow Republican commissioners believe they are on firm legal ground with their repeal of net neutrality rules. Pai's argument is that the Supreme Court decided in 2005 -- in the case of the NCTA et al versus Brand X Internet Services et al -- that the FCC can regulate broadband as an information service rather than a telecommunications one.

"At a very high level, number one, in terms of substantive law, there's no question that what we did was lawful," Pai asserted during a press conference after last week's FCC vote. "If you look at the Supreme Court's decision in Brand X, the majority of the Supreme Court expressly said that the FCC has the ability to classify broadband Internet access as a Title I information service."

FCC Chairman Ajit Pai speaks at a press conference following the net neutrality vote
FCC Chairman Ajit Pai speaks at a press conference following the net neutrality vote

Pai is right. The Supreme Court did say in 2005 that the FCC could regulate ISPs under Title I of the Communications Act rather than as common carriers under Title II.

There's more to the story, however. In 2016 the US Appeals Court for the DC Circuit also declared separately that the FCC has the right to regulate broadband as a telecommunications service. Opponents continue to pursue an appeal of that Appeals Court decision, but when it was passed last year, it upheld the 2015 Open Internet Order. (See FCC Wins Key Net Neutrality Ruling.)

The question still unanswered is how the Supreme Court might rule today. Could the highest court determine that the Appeals Court effectively made the Open Internet Order the law of the land? Or is it more likely that the Supreme Court would fall back on the determination that the FCC has the right to decide at any time how broadband service should be regulated, thus supporting the decision of the current agency leadership?

As Republican Commissioner Brendan Carr pointed out during a statement prior to the FCC's vote last week, Title I classification of broadband "remains the only classification blessed by the Supreme Court." If and until the Supreme Court takes up the issue again, the FCC majority will use that argument as its legal basis for passing the Restoring Internet Freedom Order.

For more fixed broadband market coverage and insights, check out our dedicated Gigabit/Broadband content channel here on Light Reading.

But what about Congress? The legislative branch of government could also choose to step into the fray with a law that supersedes the FCC's authority. Senate Minority Leader Charles Schumer (D-NY) has said he will do just that by forcing a vote under the Congressional Review Act (CRA) to overturn the latest FCC order. The Senator would need a majority of legislators to support his position in order to get such a vote passed, however, and it's not at all clear that such a majority exists.

Several Republican lawmakers previously expressed their concern over the Restoring Internet Freedom Order, knowing that their constituents don't support it and are wary of voter response. (See FCC Ends Net Neutrality.)

Yet getting Republicans and Democrats to agree to anything in Congress is a tall order. Democrats will push to return to Title II regulation, but whether enough Republican lawmakers will support a move that directly counters the Republican-led FCC is still a big unknown.

There is yet another option. Congress could theoretically compromise with a bill that would maintain bright line net neutrality rules -- no blocking, throttling or paid prioritization -- but still classify broadband as a Title I information service. Financial analyst Craig Moffett has suggested that this may have been Chairman Pai's plan all along because it would give a perceived victory to both sides of the debate. (See Here's Pai in Your Eye.)

Such a move wouldn't satisfy many net neutrality activists, but it might be the only path forward in the current legislative environment.

And there's still one more wrinkle. There's a multi-state lawsuit in the works led by New York Attorney General Eric Schneiderman. Schneiderman contends that the process for debating net neutrality at the FCC was corrupted because of millions of fraudulent comments submitted to the agency and not subsequently investigated by FCC authorities. The New York Attorney General along with several lawmakers had requested a delay of last week's vote to study the matter further. With that request denied, it appears that Schneiderman may use the FCC's lack of investigation as a way to challenge the net neutrality vote on an administrative or procedural basis.

In summary, the only certainty for net neutrality is that lawsuits, legislation and court appeals will continue. For good or ill, the war for the Internet is far from over.

— Mari Silbey, Senior Editor, Cable/Video, Light Reading

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tsreyb 12/22/2017 | 3:20:45 PM
Re: 2015 Taken to Court??? Seven,

Here's something you (and most net neut proponents) argue .. "paid prioritization would be the worst thing possible to put into consumer services".

It seems to me, however, that we've had 'paid prioritization' ever since consumer based Internet access began, including during the short-lived Net Neutrality era. It may come under a different name (e.g., tiered pricing), but is essentially the same thing. Today you can pay for 100mbps, 150mbps or 940mbps ($30/mo, $75/mo and $80/mo respectively) for FiOS based Internet-only service.

Does paid prioritization mean something different than today's current tiered levels??? Such as, marking packets with priority flags for priority users? That might guarantee a certain level of prioritization, but a tiered service that doesn't mark packets differently still looks like priority to the end user - I mean, they still get superior performance (for a cost) from today's (yesterday's?) tiered but non-prioritized packets.

I'm not arguing for or against anything here. I'm just trying to understand why everyone gets worked up about the paid prioritization aspect of netneut. I'm more than willing to be schooled on this, I freely admit plenty of ignorance.
tsreyb 12/22/2017 | 2:58:56 PM
Re: 2015 Taken to Court??? Mendyk, Can you be more specific? What exactly does he have wrong? I'm not taking Idol's side, I'm just trying to understand your argument. He explained his. There's a lot of fud from both sides regarding net neut.
mendyk 12/22/2017 | 9:40:12 AM
Re: 2015 Taken to Court??? Mr. Idol: Your take on reality is interesting to say the least -- and the most.
brooks7 12/21/2017 | 7:19:42 PM
Re: 2015 Taken to Court???  

First, Neutral Net usage has been the policy all along.  The question has always been how to instantiate it.  The current policy of implementation of Title II is just the latest.  I guess the GW Bush administration was liberal as well.

Second, there is no obligation for ISPs to build out Broadband Networks.  They do so because they make money in doing so. 

Third, without high bandwidth applications there is no reason for anyone to buy more than 1.5 Mb/s Internet Service...which the last time I looked went for about $15/month.  Heck even dial-up would still work which you can get for free.

Fourth, we disagree on details, but Duh! and I basically agree that the implementation of Title II has not caused any harm. 

Fifth, if you want to get rid of Net Neutrality then you must want paid prioritization.  Because connection fees are paid to those services you connect to on the Internet.  There is no form of reciprocal compensation like in the phone network. 

Sixth, my opinion is that paid prioritization would be the worst thing possible to put into consumer services.  If one is going to pay extra for a service, it better work - with guarantees.  Otherwise, people will opt to just continue to use best effort.  Once a service is paid for then people will monitor it for performance.  There will need to be compensation if performance guarantees are missed.  Note, that every endpoint can essentially measure performance - so everyone will have access to the information.  Do you really think its a good idea to have 15M users measure how well you are doing?

Austin Idol 12/21/2017 | 5:40:32 PM
2015 Taken to Court??? Everyone plays by the rules but when liberals lose by the rules they want to change the rules. Up until Obama the FCC was left alone but with Obama he had Wheeler(An Ex Cable Lobbyist) on strings and made him dance like a puppet. Obama wanted to be hip and was in with Facebook, Google, Amazon, Netflix etc...and crafted rules that favored them and allowed them to get a free ride on the backs of the ISP's hogging up huge swathes of bandwidth for their applications. The question I propose is why doesn't Facebook, Google, Amazon, and Netflix(Combined Market Cap of about $1.5T) go out and build their own dedicated network  to deliver their services and abide by Net Neutrality? Crickets.......... Net Neutrality was brought to you in 2015 by Obama/Wheeler/Google/Netflix/Facebook/Amazon to address a problem that never existed and only solidified the moat that those big 4 companies had. But throw out a term like net neutrality and big bad ATT, Comcast, and Verizon and you rile up the uneducated sheep and they cry and whine.
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