Net neutrality rules face legal challenges
The Federal Communications Commission is considering new rules to regulate the Internet. The proposal by FCC Chairman Tom Wheeler would reclassify Internet service providers (ISPs) as telecommunications services, as opposed to information services.
That seemingly small change would allow the FCC to regulate ISPs and enforce so-called net-neutrality rules.
The FCC is honing in on three areas of oversight: the blocking of access to any content, the ‘throttling’ of Internet traffic (slowing it down for reasons other than what may be technically necessary to maintain a network’s operations), and paid prioritization (in which providers may favor some Internet traffic over others by creating ‘fast lanes’ for websites and services that can pay for them).
The FCC is proposing banning all of those practices.
“The day before the rules, and the day after: they’re probably going to look pretty similar,” at least for consumers, says Doug Drake, a telecom policy analyst with the Information Technology and Innovation Foundation.
For Internet providers, though, the adoption of the new rules could lead to a lot of uncertainty as lawsuits are sure to follow, Drake says. And he says they could lead to a number of unintended consequences as reclassifiying ISPs as telecommunications companies throws into question othe contracts that were agreed to on the premise that they are information companies.
“Companies like AT&T and Verizon have already stated very explicitly that they’re going to sue,” says Kevin Werbach, a former FCC counsel in the Clinton administration who is now a professor at the University of Pennsylvania.
One of the key legal arguments to expect in the months to come, according to Werbach, is that the FCC previously said a company can either be a telecommunications service or an information service, but not both. ISPs may argue that they are elements of both and that the FCC must prove that they are not information companies before it can reclassify them, says Werbach.
“It’s very unlikely that the legal issues will be resolved in less than a year or two,” Werbach says.
And the lawsuits may not just challenge the new rules themselves. They could challenge how those rules are implemented, says David Farber, a former chief technologist at the FCC.
“Special interest groups will come and say: you can’t not do this because it’s in the rules,” says Farber, referring to the discretion senior FCC officials say they have in deciding which elements of a law that now applies to telecommunications companies it will impose on Internet service providers.
Lobbying and lawsuits may force the FCC to impose new restrictions it hadn’t planned on, says Farber, who opposes the new classification proposal.
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