On Wednesday, this blog discussed the DC Circuit Court’s ruling in Verizon v. FCC, Verizon v. FCC dealt with the FCC’s 2010 Open Internet Order established a number of rules designed to prevent certain practices, such as network discrimination and blocking practices, that would threaten an open internet. The DC Circuit ended up ruling that the FCC lacked the authority to put these regulations in place because these regulations represented common carrier restrictions, and the FCC did not define broadband ISPs as common carriers. The court remanded back to the FCC, giving them an opportunity to rewrite the Open Internet Order if they so choose.
Where does the FCC go now? Their obvious choice in this case is to simply rewrite the regulations to fit what the court found acceptable. The DC Circuit did not invalidate the FCC’s general authority to regulate internet providers. The judge simply wrote that, from a technical standpoint, they could not regulate the ISPs as they had defined them. Redefine broadband ISPs to common carriers, and there is not problem from the DC Circuit’s perspective.
As Ars Technica points out, there are some practical issues with this solution. The ISPs will likely fight the reclassification with the same fervor with which they fought the Open Internet Order. The FCC may wish to avoid that particular fight. The FCC could also try to convince the ISPs to accept some kind of voluntary agreement to preserve net neutrality. These agreements would likely contain watered down versions of the rules presented in the Open Internet Order. For example, the voluntary agreements may allow for the ISPs to still pursue tiered services (charging for better access) but place restrictions on the fee arrangement. The nature of these agreements is entirely speculation on my part. Whatever actions either party takes, FCC Chairman Tom Wheeler did little to elaborate on the FCC’s next move.
The other major option is for the FCC to appeal their case to the Supreme Court. A victory at the Supreme Court could preserve the Open Internet Order in full. This path is also very uncertain, given that the Supreme Court could also opt to undermine the FCC’s regulatory authority.
At the end of the day, the FCC’s best option is to redefine broadband service providers as telecommunications companies and common carriers. That would place ISPs well within the FCC’s regulatory authority, and would seemingly allow for the DC Circuit to support the Open Internet Order’s provisions. The only major downside is that the ISPs would almost certainly contest such a move, and fight it vociferously.
Enjoy your weekend. I’ll be back on Wednesday.
Geek Law 