If you thought the Federal Communications Commission’s
vote to approve limited net neutrality rules were the end of the dispute, think again.
Net neutrality refers to the principle that ISPs should not be allowed to block or degrade Internet traffic from their competitors in order to speed up their own. The push for net neutrality began in 2005, when incumbent telecom carriers successfully lobbied the FCC to repeal common carrier rules that required the incumbents to allow ISPs such as EarthLink to buy space on their broadband networks at discount rates. The battle over net neutrality has been waged for years with consumer groups and some Internet companies in favor and telecom carriers almost universally opposed.
The rules passed by the FCC last month were very similar to the joint proposal the Google and Verizon unveiled this past summer that imposed net neutrality on wireline broadband while leaving wireless broadband mostly alone. So while the FCC’s order mandates that wireline broadband providers are not allowed to “block lawful content, applications, services or non-harmful devices, subject to reasonable network management,” wireless providers are only barred from blocking content or applications that directly compete with their own voice or video telephony services.
But any dreams of even a temporary net neutrality ceasefire ended last week when Verizon filed a lawsuit challenging the FCC’s authority to enforce any kind of net neutrality rules. Verizon is challenging the FCC’s authority in the same Washington D.C. appeals court that ruled last year that the FCC did not have the authority to regulate ISP network management under its current legal framework.
In the wake of last year’s court ruling, it was generally thought that the FCC essentially had three basic options for moving on net neutrality: It could do nothing, it could wait for Congress to draft network neutrality legislation or it could decide to reclassify broadband services as telecommunications, rather than information services, to gain regulatory authority.
Needless to say, none of these three things actually occurred and the FCC has instead cobbled together a watered-down net neutrality proposal that utilizes a good deal of the same legal justification that was shot down by last year’s court appeals court ruling. In particular, the FCC’s reliance on direct authority from Section 706 of the 1996 Telecommunications Act could prove problematic since it was a major piece of the FCC’s failed defense last year.
“The fact that the Commission has already taken its … arguments to the judicial well once and come up dry does not bode well on that front,” explained communications lawyer Christine Geopp last year. “To be sure, Chairman Genachowski and his staff may have been able to tease more nuances from Section 706 than they had previously. But in view of the Comcast Court’s seemingly flat-out rejection, it would appear that something more than nuances may be necessary.”
So if the court once again shoots down the FCC’s ability to enforce even modest net neutrality restrictions, the issue will head back to both Congress and to the court of public opinion, where net neutrality advocates say they’ve been making progress in raising awareness.
Marvin Ammori, the general counsel for net neutrality advocates Free Press, sees reasons for optimism in the battle for public opinion, since last year’s joint net neutrality proposal from Google and Verizon gave the issue far more visibility than anything it had received in the past. Additionally, he notes that all carriers feel they need to at least pay lip service to delivering an open Internet even if they oppose net neutrality rules.
“That the public is even vaguely informed of a threat to an open Internet, and reacted so negatively to the Verizon-Google deal will make it harder for a future FCC to ignore net neutrality,” he says. “All the carriers go around saying they support an open Internet [despite the fact that] they oppose the rules.”