Networking

What's next for the FCC and net neutrality?

In a historic decision, the U.S. Federal Communications Commission voted on Dec. 21 to approve network neutrality rules, but that action will not bring an end to a long debate about the need for regulations prohibiting broadband providers from selectively blocking Web traffic.

The chances of a lawsuit challenging the rules are extremely likely, according to most FCC observers. And several Republicans in Congress have promised attempts to repeal the rules, although the chances of success there are slim.

The burning question about a lawsuit is not if it will happen, but who will file it.

"Everything the FCC does gets taken to court," said Art Brodsky, communications director for Public Knowledge, a digital rights group that criticized the rules as too weak. "That's a pretty safe bet. Who's going to do it? There are lots of suspects."

The obvious suspect to file a lawsuit would be a broadband provider. However, two major ISPs, AT&T and Comcast, have indicated initial support for the new rules, although the full text of the rules was made available late Thursday, just before a long Christmas weekend for many people.

Verizon Communications said the FCC made the rules "without solid statutory underpinnings." A spokesman declined to comment about the possibility of a lawsuit. USTelecom, a trade group representing broadband providers, and several smaller providers have also voiced opposition.

But a lawsuit could come from other quarters as well, even though other groups might have more difficulty proving they have standing to file a lawsuit. Brodksy and Aparna Sridhar, policy counsel at media reform group Free Press, both suggested a lawsuit could come from a broadband customer, such as a public-interest group or think tank, that disagrees with the direction of the rules.

A mobile applications provider that doesn't think the rules protect its ability to market its products might also be a candidate to sue, Sridhar said.

A number of groups, both those that question the FCC's authority to enact the rules and those that think the rules don't go far enough, could seek to file lawsuits, added Mike Wendy, director of MediaFreedom.org, an antiregulatory advocacy group. "Theoretically, my group could file, but that's costly," he said. "Who knows—this stuff brings parties out of the woodwork."

But a challenge from groups that want stronger rules seems unlikely, said Randolph May, president of the Free State Foundation, an antiregulation think tank. "You would think there would be some ISP somewhere, even a small one, that would bring a court challenge," he said. "Despite the professions of Free Press and its allies ... I doubt if a challenge will come from the pro-net neutrality folks. I think now they will just turn their energies to trying to get the FCC to interpret and enforce the rules in the most regulatory way possible."

The likely question in a lawsuit, at least from groups opposed to net neutrality rules, is whether the FCC has the authority to create the regulations. In April, the U.S. Court of Appeals for the District of Columbia Circuit struck down an attempt by the FCC to enforce informal net neutrality principles in place since 2005, and many critics of the FCC's net neutrality vote question how the FCC can assert new authority after that setback.

The appeals court decision "suggests that federal courts are not likely to look favorably on the FCC's expansive view " of its current authority, said Ryan Radia, associate director of technology studies at the Competitive Enterprise Institute, an antiregulation think tank.

Look for a court case to drag out for months and possibly end up before the U.S. Supreme Court, said Michael Livermore , executive director at the Institute for Policy Integrity at New York University School of Law.

"This decision is on shaky legal ground so it is completely possible it would not be upheld," he said. "But this is going to be the deal for at least 18 months to a couple years—a court challenge would take a while. As a result, for broadband, this compromise could just end up kicking the can down the road since there's a good chance it gets overturned and we'll have the larger net neutrality fight again in two years."

The FCC did not reclassify broadband as a regulated, common-carrier service under Title II of the Telecommunications Act, as agency Chairman Julius Genachowski had earlier recommended, but the FCC's inquiry about reclassification is still open. It's still possible for the FCC to reclassify broadband, in order to assert additional authority for the rules, although that effort would likely be challenged both in court and in Congress.

As for Congress, several Republican lawmakers, including incoming Speaker of the House John Boehner, have criticized the new rules, approved by a 3-2 party-line vote at the FCC.

The new rules "will hurt our economy, stifle private-sector job creation, and undermine the entrepreneurship and innovation of Internet-related American employers," Boehner, of Ohio, said in a statement. "The American people are asking 'Where are the jobs?' They aren't asking for yet another government takeover that imposes more job-killing federal regulations and puts bureaucrats in charge of the Internet."

A repeal of the net neutrality rules would face an uphill battle in Congress, however. Many lawmakers from both parties opposed Genachowski's earlier proposal to reclassify broadband, but the opposition to the new rules appears to be more partisan.

While a repeal effort may have traction in the House, where Republicans take the majority in 2011, it's likely to stall in the Senate, where Democrats will retain their majority. And President Barack Obama—who has long called for net neutrality rules—would almost certainly veto any attempted repeal.

Attempts to pass net neutrality laws in Congress have stalled in recent years, and attempts to repeal them would likely suffer the same fate, said David Sohn, senior policy counsel at the Center for Democracy and Technology, a digital rights group. "It's hard for me to see the logjam being broken," he said.

Meanwhile, the rules will give broadband customers the right to file complaints about net neutrality violations. The complaints could happen as soon as the rules go into effect, probably early in 2011, unless someone files a request for injunction, and a judge grants it.

The final language of the rules isn't out yet, but there appears to be significant room for interpretation on how to apply them, said Public Knowledge's Brodsky. "It'll be a very complex implementation because the order is very vague," he said.

All those questions point to the possibility of the rules ending up in court. "The one thing that is certain is, that if the FCC's action was an effort to put the net neutrality debate behind us, it was unsuccessful," said Thomas Lenard , president of the Technology Policy Institute, an antiregulation think tank.

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