Net neutrality is the principle and movement that advocates the open and free use of the internet, without restriction from internet service providers. It has been the focus of much debate and political discourse, which has pitted consumer protection groups against those who see additional regulation as an unnecessary burden. The proponents of net neutrality argue that, without more extensive regulation, the providers will be able to control access to content and offer preferential treatment to select groups. This, they argue, would create a tiered system which would eliminate the internet’s level playing field and violate the spirit of freedom of information that pervades the internet. Opponents of regulation counter that such regulation would hinder innovation, prevent proper bandwidth management, and create more problems than it solves.
Against this background, the Federal Communications Commission recently published their official “open internet” rules in the Federal Register. These rules create a framework for preventing providers from blocking content or unreasonably discriminating in the transmission of internet traffic. The official publication opens the floodgates for the expected legal challenges to the rules. Multiple parties wasted little time, and if the conventional wisdom about a good compromise being one that leaves both parties unhappy is correct, then perhaps the FCC has found that ‘happy’ middle ground.
“If the conventional wisdom about a good compromise being one that leaves both parties unhappy is correct, then perhaps the FCC has found that happy middle ground.”
The first challenge to the regulations came from the consumer group Free Press, which filed an appeal of the FCC’s decision claiming that the regulations are “arbitrary and capricious, an abuse of discretion, or otherwise contrary to law.” In particular, the group is upset that the rules apply differently to mobile and fixed platforms for broadband access, with less stringent rules for mobile platforms. Free Press therefore sees the rules as unacceptably weak, and views the less stringent mobile rules as a critical oversight given the degree to which mobile internet access has increased in recent years.
On September 30th, Verizon Communications appealed the FCC rules on the basis that the agency does not have the authority to regulate the internet. Ironically, Verizon also referred to the rules as “arbitrary” and “capricious,” though in reference to the opposite view (relative to that of Free Press) that the rules are overbroad and unnecessary. The goal of this suit is to strike down the neutrality rules, though Verizon claims it is “fully committed to an open Internet.”
In response to the suits, the FCC released a statement in which it promised that it would “vigorously oppose any effort to disrupt or unsettle that certainty, which ensures that the Internet remains an engine for job creation, innovation and economic growth.” It remains to be determined whether the FCC will be successful in defending the new rules, but a prolonged battle seems likely before any rules will take effect. The courts must resolve both whether the FCC actually has the authority to regulate the internet, and also as to whether the proposed regulations are appropriate. With no Congressional legislation on the horizon to accomplish similar regulation, the near-term future of any internet service regulation likely rests with the outcome of these suits.
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