Monday, April 18, 2016

Net Neutrality Has Support, but Won’t Go Unchallenged Anytime Soon

By  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.


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