Net Neutrality: 4 Legal Challenges To Consider
FCC Chairman Tom Wheeler unveiled a new open Internet proposal on Wednesday, and carriers are gearing up for battles in court. Here, we look at four legal arguments we can expect to see, and give you our best guesses as to how they'll fare in court.
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The FCC is making its third attempt at codifying and enforcing net neutrality principles. FCC Chairman Tom Wheeler unveiled a proposal on Wednesday to reclassify broadband and mobile broadband providers as "telecommunication services," also known as common carriers.
Broadband service providers are currently classified by the FCC as "information services" and, as such, are not subject to the same stringent regulations that govern telecoms. The reclassification, if adopted, would be a significant step toward defining the powers of Internet service providers and, according to some observers, would create the kind of level online playing field that is the goal of net neutrality advocates.
[ See how Verizon, AT&T are reacting to the FCC's net neutrality push. Read FCC Net Neutrality Push Rattles Verizon, AT&T. ]
This is the latest salvo in an ongoing attempt by the FCC to regulate broadband Internet access, and the first time that the agency has specifically included wireless broadband providers in its sweeping proposal. However, the agency's earlier attempts to support net neutrality have been successfully challenged in court.
In the 2010 case Comcast Corp. v. FCC, 600 F. 3d 642 (D.C. Circuit 2010), a ruling by the District of Columbia Federal Court of Appeals significantly sapped the FCC of net neutrality-imposing power. When the FCC adopted its Open Internet Order in December 2010 as a way of getting around the Comcast ruling, Verizon sued. The company prevailed in Verizon v. FCC, 740 F.3d 623 (D.C. Circuit 2014), getting the FCC's anti-discrimination and anti-blocking orders vacated. The court found that those orders attempted to regulate broadband and mobile broadband carriers as providers of "telecommunications services," which was then contrary to FCC classification.
[ Want to learn more about the FCC's latest net neutrality play? Read FCC Net Neutrality Salvo: Reclassify Broadband Providers. ]
If the FCC is successful in its current attempt to reclassify those providers, it could set a precedent that might derail a future court ruling on those grounds. Indeed, Wheeler's latest goes so far as to include bans on paid prioritization (i.e., an Internet "fast lane") for fixed broadband and mobile broadband, as well as bans on blocking or otherwise throttling lawful content and services.
The FCC proposal is set to face a vote – and is expected to be approved – by the FCC's Commissioners on February 26.
Given the history here, it is a safe bet to presume that this plan will face a courthouse challenge. Indeed, Wheeler reportedly fully expects a lawsuit, and AT&T is already gearing up for one. The following pages offer a look at some new potential bases for legal challenges in this epic battle between Big Business and Big Government over control of the Internet.
In a highly technical ex parte letter to the FCC this month, AT&T argues that it, and other ISPs like it, meet the legal definition of "information services" providers -- and that the respective legal definitions of "information services" and "telecommunication services" are mutually exclusive, even though the one may be, arguably, a component to the other.
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Reclassifying ISPs as providers of "telecommunications services" to regulate them the way the FCC wants essentially defines them as "common carriers." This is a legal term of art describing service providers that are under a legal obligation to serve everyone indifferently and without discrimination.
(Image Source: Jerry "Woody" via Creative Commons)
Possibly. Opponents to the reclassification (including AT&T, in yet another ex parte letter it filed with the FCC this month) insist that they have no legal obligation to provide Internet access to anyone. They argue that, so long as no statute exists to compel them to act as such, they cannot be treated as common carriers if they do not hold the power of a monopoly.
(Image Source: Hans via Pixabay.)
Net Neutrality proponents rely upon the Freedom of Speech Clause of the First Amendment in advancing their arguments. If open Internet rules are not adopted, they say, the result will be censorship.
Net Neutrality opponents, however, insist that the Freedom of Speech Clause protects their interests. Their argument: The networks, subject to heavy regulation as they may be, belong to the carriers. Therefore, by forcing carriers to treat all content equally, the federal government would be restricting the carriers' freedom of speech. (After all, the First Amendment does not bar private persons from censoring each other; rather, it only applies to government censorship of private persons.)
(Image source: Ed Uthman via Creative Commons)
The Takings Clause of the Fifth Amendment was another issue that was raised by Verizon in its lawsuit against the FCC last year. As with the First Amendment issue, the court declined to address it because it had disposed of the case on other grounds. Therefore, the argument remains ripe for another go-round in the courts.
(Image source: Hans via Pixabay)
These are just some of the potential challenges the FCC will face as it pushes forward with its latest net neutrality play. What do you think? Is net neutrality going to inhibit free enterprise? Or are the current practices of broadband Internet service providers hurting consumers? Will Wheeler's latest efforts stand up to legal challenges? Tell us all about it in the comments section below.
(Image source: Bkyst via Pixabay)
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