Tags: FCC | Internet | Congress | net neutrality

Industry Panel Considers Major Internet Case

By    |   Thursday, 30 Jan 2014 07:58 PM

The U.S. Court of Appeals for the District of Columbia Circuit recently rejected the “net neutrality” section of the Federal Communications Commission's (FCC) Open Internet Order, which would require broadband providers to treat all Internet traffic equally.

The court rejected the Internet regulations on the ground that the agency cannot use authority under section 706 of the Communications Act to do this, but must instead resort to its authority to regulate common carriers if it wishes to proceed with this agenda.

This would entail proposing new regulations, which would likely be followed by another round of litigation, all of which could take several years. This decision raises the visibility of Internet regulation and may spur action in Congress to remodel communications law rather than take the risk that the FCC will try to regulate the Internet under common carrier rules meant for a different industry in another era.

Against this background, the Congressional Internet Caucus Advisory Committee convened a panel to discuss the decision. For some readers, it might be a revelation that there is a Congressional Internet Caucus. It is led by the chairmen and ranking members of the Senate and House Judiciary Committees: Sens. Patrick Leahy, D-Vt. and John Thune, R-S.D.; Reps. Bob Goodlatte, R-Va., and Anna Eshoo, D-Calif.

The moderator was David Sohn, general counsel of the Center for Democracy and Technology, and the panel was assembled by still another organization, the Internet Education Foundation.

In his introduction, Sohn noted that Verizon had challenged the FCC's rules on the grounds that they were arbitrary and capricious, violated the Communications Act and were unconstitutional. The core of the ruling is that the agency cannot impose common carrier regulation piecemeal.

Markham Erickson, executive director of the Open Internet Coalition, an intervenor in the case, decried the fact that the FCC now has no authority to prevent blocking sites, but he argued that there must be room for Internet service providers to differentiate their content and not be required to act as common carriers.

He pointed out that the agency has an open docket that it could use to advance proposed nondiscrimination rules. Another result could be that content providers could impose new services charges.

Christopher Yoo, a professor of the University of Pennsylvania Law School, quipped that both sides won and that the FCC's worst nightmare and Verizon's goal was to strip the FCC of all of its authority to regulate the net. Verizon likes the fact that the rulings as proposed were vacated. Yoo questioned whether FCC Chairman Thomas Wheeler wants to make this issue the focus of his chairmanship.

Matthew Wood, policy director of Free Press, another intervenor in the case, called it a win for the FCC, because its authority to regulate the web was confirmed, and a loss for Net Neutrality, which his group favors. He urged the agency to proceed with common carrier regulation.

Russell Hanser, a communications lawyer who wrote an amicus brief for the National Association of Manufacturers, which he calls "Fifty Shades of Net Neutrality," argued that while everyone is asking where Net Neutrality stands, this is the wrong question. He contended that Net Neutrality is not an end in itself, but a means to an end, that the industry accepts that the FCC should have some authority but should use other tools to police the web.

(Archived video can be found here.)

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Robert-Feinberg
The court rejected the Internet regulations on the ground that the agency cannot use authority under section 706 of the Communications Act to do this, but must instead resort to its authority to regulate common carriers if it wishes to proceed with this agenda.
FCC,Internet,Congress,net neutrality
563
2014-58-30
Thursday, 30 Jan 2014 07:58 PM
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