| LXBN | April 18, 2016
Net neutrality is under fire
again. Must be a day that ends in “y.”
Friday saw the House vote in favor of controversial regulation that would prevent the
FCC from regulating rates that high-speed internet service providers charge
consumers. Though the FCC has made no plans to regulate broadband internet
service rates, supporters of the bill, HR-2666, say that principle would now
merely be enshrined in law. Critics of the bill, on the other hand, argue
that the bill’s broad language would prevent the FCC from being able to
regulate net neutrality.
The White House has already
announced that if the bill makes its way through the Senate and to the
President’s desk he will veto it, so HR-2666 faces a bit of an
uphill climb. But it’s not the only thing in the works against net neutrality,
and with a court decision expected any day now and a new president on the way,
net neutrality’s staying power is far from certain. And a lot of that is from
all the turmoil in the U.S. political system.
Take HR-2666 for example.
Known colloquially as the No Rate Regulation of Broadband Internet Access Act, it’s the first real
legislation from Congress on net neutrality. It passed the House on Friday with
a vote of 241-173, with only five Democrats voting for its passage. Most
Democrats, as well as many open-internet supporters, have argued that HR-2666
could be used by ISPs to sue the FCC for blocking zero-rating, blocking, or
other net neutrality practices. As Pat
Curran of the Open Internet Law Advisor writes, HR-2666 is a
classic example of the partisan gridlock surrounding open internet initiatives:
Sponsored by Republicans,
HR-2666 cleared committee and subcommittee despite intense Democratic
opposition. Bipartisan negotiations appear to have broken down, and no
bipartisan amendments were filed. Rather, Rep. Mark Sanford (R-SC), filed
an amendment to HR-2666 declaring that the FCC
“does not have authority to classify broadband Internet access service as a
telecommunications service . . . and should reclassify broadband Internet
access service as an information service . . . as before the adoption of the
Report and Order on Remand, Declaratory Ruling, and Order that adopted by the
Commission on February 25, 2015.” The Sanford amendment would
also declare that the FCC lacks authority under Section 706 of the
Communications Act to issue Open Internet rules.
But as Curran notes, this is
not the only net neutrality decision in the works. This gridlock could be
cleared a bit depending on an upcoming D.C. Circuit decision.
It’s the third time in less
than a decade that the FCC’s attempts to regulate internet access have been
challenged in court. But this time around reclassification is at the heart of
the issue. Cable, wireless, and broadband industry associations are standing with companies like AT&T and
CenturyLink to challenge whether the commission is allowed to reclassify
broadband internet as a telecommunications service so they can regulate it
under Title II of the Communications Act.
The Circuit’s decision is
expected to come down any day now. And as The Washington Post notes no one is really
sure exactly which way this will go. The FCC was a bit shifty about whether the internet has actually
changed enough to function as a telecommunications service
rather than an information service. And that could mean the Circuit Court’s
decision is not the last stop on this net neutrality appeals court trip:
The FCC has said that it is
confident the rules will survive judicial scrutiny. [But] could this go to the
Supreme Court? Maybe. Some legal scholars think it won’t get that far…
An appeal to the Supreme Court
also carries a bit of risk for whomever is escalating the case. Here’s why.
With Justice Antonin Scalia’s seat still empty, a 4-4 tie vote at the Supreme
Court automatically allows the lower court’s ruling to stand. Suppose you’re an
Internet provider and you “lose” at the D.C. Circuit. If you appeal to the
Supreme Court and there’s a split decision, you’ve still lost.
Still, other analysts believe
that a Supreme Court confrontation is inevitable, because somebody could file a
lawsuit on net neutrality in another appellate court, potentially provoking a
circuit split for the high court to solve. Or they
could bide their time until there’s a ninth justice on the bench, which could
offer more clarity as to the path forward. And there is a First Amendment
component to the lawsuit that essentially amounts to Supreme Court bait, but
it’s unclear how much traction it will have with the highest court in the land.
Of course that goal post would be a whole lot clearer
if we had a full SCOTUS bench. Problem is, it does not appear we’re
getting that anytime soon. Even if we do, there’s still
a whole lot of confusion and stalling around actual net neutrality enforcement;
since the rules went into effect in June nothing much has changed, despite a couple incidents of potential violations.
The simplest solution would involve Congress stepping
in and addressing net neutrality with legislation that would resolve the
impasse. But as HR-2666 shows, we’re not there yet either. Once the D.C.
Circuit decision comes in, it’s possible one side of Congress might be willing
to meet in the middle (or concede) a bit. Then there’s also the possibility of
a jolt to the system in a new president, who would introduce new FCC
commissioners to the agency and change the make-up of the net neutrality
support. And at this point the next occupant of the White House seems to be
just about anybody’s game.
On the side of the consumers there’s actually a lot of support for net
neutrality, once they’re clear on the principles. But given the roadblocks across the various pathways to success
for net neutrality it’s a long battle either way.
No comments:
Post a Comment