FCC's McDowell: Net neutrality would face legal challenge

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If the U.S. Federal Communications Commission adopts broad new net neutrality regulations, the agency’s authority to do so will be challenged in court, predicted Robert McDowell, a member of the commission.

It’s unclear whether the FCC has the authority to create net neutrality rules for broadband providers, which under current FCC rules are classified as largely unregulated information services, McDowell said Friday during a speech at a Free State Foundation broadband policy forum. And the suggestion by some advocacy groups that the FCC reclassify broadband services as more heavily regulated common carrier services would also face lawsuits, he said.

While some net neutrality supporters have said clear rules of the road are needed, McDowell questioned whether new regulations would provide clarity. “As a matter of good government, wouldn’t creating such a new and untested regulatory regime without congressional authorization cause more uncertainty and not less, as advertised?” he said. “And speaking of inevitable appellate litigation, how many years will it take to resolve these issues?”

McDowell, part of the Republican minority at the FCC, also questioned whether net neutrality advocates have demonstrated a need for new rules, which would prohibit broadband providers from selectively blocking or slowing Web content and applications. There have been few examples of broadband providers hurting customers or competition, he said.

“Nonetheless, even in the absence of a clear showing of systemic market failure, the commission may still be headed toward enacting new regulations,” McDowell said.

Reclassifying broadband providers as common carriers, similar to traditional telephone service providers, would be an about-face from commission decisions in recent years and would not hold up in court, McDowell predicted.

“Generally speaking, if the commission wishes to change its mind courts will allow it to do so—provided the commission relies on a rational factual basis,” McDowell said. “When reversing course from a prior deregulatory decision, an agency bears the burden of openly acknowledging its reversal and providing a reasoned and detailed justification for the change based on record evidence. Yet so far, the record contains scant evidence that would help protect a [common carrier] classification order from appellate scrutiny.”

McDowell’s remarks came as the FCC is in the middle of a rulemaking proceeding on net neutrality. Asked if he planned to vote against a net neutrality, or open Internet, rule, McDowell said it’s too early to predict. The FCC isn’t scheduled to vote on a proposal for several months.

Several panelists in a discussion following McDowell’s speech also questioned the need for net neutrality rules. Only one of six panelists invited by the Free State Foundation, an antiregulation think tank, supported new rules.

The job of defending net neutrality regulation fell to Richard Whitt, Google’s Washington, D.C., telecom and media counsel. There have been examples, and continue to be problems, of broadband providers blocking or slowing some applications in the name of network management, Whitt said. Sling Media, a video delivery firm, continues to negotiate with AT&T about getting access to its mobile network, despite it being less of a bandwidth hog than some other applications that are allowed, Whitt said.

Without FCC rules, there’s no official arbiter of disputes about network access and content blocking, Whitt said. “If there’s somebody out there who has a problem … where does that person go?” he said. “Somebody needs to have jurisdiction over what happens to our broadband networks.”

Broadband is “too important” to the U.S. economy to leave all decisions to the free market, Whitt said.

Still, both Whitt and opponents of net neutrality rules urged the two sides to come together to find common ground. Many people on both sides of the debate can agree that if there’s government oversight of broadband it should be limited, said Tom Tauke, executive vice president for public affairs, policy and communications at Verizon Communications.

Instead of FCC rules, the U.S. Congress should decide if a net neutrality law is needed, Tauke said. The FCC takes months or years to create new rules, and the Internet changes constantly, he said. The FCC rulemaking process “does not fit well with the Internet space,” he said.

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