Another day, another victory for net neutrality at the courts. And another reminder that this is likely not the last defense net neutrality advocates will have to mount.
The D.C. Circuit upholding the FCC’s ability to define high-speed internet service as a utility with a 2-1 decisionis a big get, for sure. But opponents are still exploring their options, and although the FCC has a bad history of losing their battles, this time will probably be different—at basically every step of the way.
The Courts
The goal for years has been to protect the “open internet,” by prohibiting internet service providers (ISPs) from engaging in three basic tenants of “delinquent” internet supply: throttling, blocking, and paid prioritization.
The first few times the FCC tried to do this, it ended up barking up the wrong tree; looking to regulate without any reclassification, or just fighting for the wrong classification. And in December 2010 when the D.C. Circuit last reviewed the commission’s net neutrality push they made it very clear (“spelled it out” as the kids say) that the FCC could have a winning case if they were reclassifying (and thus, regulating) the ISPs as telecommunications services. And so last year they did. Which of course angered the usual ISP suspects—AT&T, Comcast, and Verizon—who retaliated by suing the FCC to get the change off the books. Which is how net neutrality got back to the D.C. Circuit for the third time.
For some it seemed up in the air; after all the commission had lost its previous two battles at the D.C. Circuit. But with a new bag of tricks and what seemed like everyone saw as proper classification at last the odds were finally in the agency’s favor. Perhaps the most surprising thing was that it took the agency three tries to get this right.
Photo Credit: Jeremy Brooks cc
As always, they’re not out of the woods yet. AT&T’s general counsel is already making the rounds stating that they “always expected this issue to be decided by the Supreme Court,” and that the company is already looking forward to an appeal. Many aren’t sure the Justices are looking to wade into this issue, but even if they do grant a cert it’d be tough to get a win at the nation’s high court.
The analysis would revolve around whether the FCC followed proper procedure in enacting the rule, and whether the regulations are couched in a way that still allow ISPs to provide maintenance in the way consumers want (traffic management during peak use times, for instance) while preventing them from crossing the line (like asking Netflix to pay extra to ensure its customers get good or improved speeds). And with an 8-justice court, that’s frequently split right down the middle on conservative and liberal lines, a reversal would be a hard thing to get. Perhaps the only other judicial option would be to get a full review from the D.C. Circuit, which many still believe would be fruitless for ISPs. But as Harry Cole writes for theCommLawBlog, just because it’s difficult doesn’t mean it’s impossible:
While the odds that a previous decision will get reversed tend to get a lot lower as a case progresses up the appellate ladder, you never can tell – particularly here, with Judge Williams spelling out in considerable detail why he believes the FCC’s decision should be vacated. In other words, there’s almost certainly more to come.
The Congress
Of course there’s other branches of the government to take the issue to. Since the FCC voted in favor of net neutrality, ISPs have been talking congressional solutions. But in more than a year since the FCC made the change there’s been no success from the congressional side, including a recent effort from just two months ago, as Pat Curran reports for the Open Internet Law Advisor:
The Rate Regulation of Broadband Internet Access Act (HR-2666) is emblematic of the partisan gridlock surrounding Open Internet rules. 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 anamendment 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.The White House responded swiftly to HR-2666, which is scheduled for a floor vote on Friday, April 15, issuing a Statement of Administration Policy on April 12 stating that the bill “would undermine key provisions in the [FCC’s] Open Internet order and harm the Commission’s ability to protect consumers while facilitating innovation and economic growth.”While HR-2666 is widely expected to pass the Republican-controlled House of Representatives, the Statement of Administration Policy effectively announces that President Obama would veto the legislation if it made it to his desk.Public Knowledge also sent a letter to the leaders of the House and Senate on behalf of fifty other public interest groups urging Congress to reject the legislation.
That bill passed the House, but even with the removed uncertainty of the D.C. Circuit’s decision hanging over it the future doesn’t look bright for HR 2666. That doesn’t mean it’s not an option as the cards lay now, though.
“While this is unlikely the last step in this decade-long debate over internet regulation, we urge bipartisan leaders in Congress to renew their efforts to craft meaningful legislation that can end ongoing uncertainty, promote network investment and protect consumers,” Michael Powell, president of the National Cable & Telecommunications Association, said in a statement, joining other wireless industry groups who claim to be pursuing both judicial and congressional options.
And just like last year, conservatives in Congress have already made quick moves to condemn the FCC’s actions and the D.C. Circuit’s decision.
“Rather than providing internet users and companies alike with the regulatory certainty they need to thrive, we instead now have a highly political agency micromanaging the internet ecosystem. Today’s decision is a clear signal that my colleagues and I need to reestablish Congress’ appropriate role in setting communications policy on a bipartisan basis,” said Sen. John Thune, chair of the Senate Commerce Committee.
The Future
So will this finally be the piece of legislation that invigorates lawmakers to start enacting change? With the slam dunk and closed doors the FCC seems to have created on the judicial branch it’s possible Congress will start groaning into action.
Meanwhile the security afforded by the D.C. Circuit position for now means the FCC can start applying the net neutrality principles and staking out what that really means—not to mention the limits—in the modern marketplace. Some companies think the basic net neutrality principles are only the start:
As [FTC Commissioner Julie Brill] stated in a recent speech on broadband and privacy, the Federal Communications Commission’s (FCC) reclassification of broadband as a Title II common carrier service adds it as “a brawnier cop on the beat” on privacy issues. She welcomed the opportunity for the two agencies to work in cooperation to create “strong consumer privacy and data security [that] are key ingredients of our data-intensive economy, including the practices of broadband providers.”…The FCC is now well positioned to take its place as that ‘brawnier cop on the beat’ focusing on broadband providers…[and] also provide for notice of data breaches, and hold broadband providers accountable for any failure to take suitable precautions to protect personal data collected from users.
As always, time will tell. But today net neutrality seems here to stay, or at least ready for a bigger fight.
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