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FCC Braces For Legal Backlash Against Proposed Net Neutrality Rules

Last week the FCC proposed new neutrality rules. Internet service providers are already lining up to challenge them.

FCC Braces For Legal Backlash Against Proposed Net Neutrality Rules
[Photo: Flickr user Internet Education Foundation]

AT&T is already preparing to sue the Federal Communications Commission over its proposed net neutrality rules, expected to be approved later this month. The FCC’s attitude? Bring it on.

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Last week Federal Communications Commission chairman Tom Wheeler laid out the strongest net neutrality rules ever. These proposed rules would see broadband service reclassified under Title II of the Communications Act as “common carriers.” What all of that means is that the FCC would prevent Internet service providers from blocking or throttling traffic, including for traffic-heavy sites like Netflix, Amazon, and YouTube. ISPs would also not be allowed to offer paid prioritization of traffic, which would let established companies such as Netflix pay a fee so that their content reaches consumers faster than a rival company’s.

In short, the FCC’s proposed rules guarantee the core of net neutrality: the principle that all content on the web is treated exactly the same.

Wheeler has known for some time that the FCC would be sued should it go ahead with Title II reclassification. So this latest news is hardly a surprise. And the FCC has made sure that it’s on solid legal footing.

The FCC previously attempted to enforce similar net neutrality regulations, but it rested on shakier legal grounding. Those rules were struck down when challenged in the U.S. Court of Appeals for the D.C. Circuit last year because the FCC was only invoking a minor provision to establish its regulatory authority. But the court suggested to the FCC that if it were to make its arguments based on Title II that they would stand up in court. The FCC apparently took that advice to heart and is now pursuing that legal avenue.

The case that AT&T is expected to bring rests on a technical reading of the law that distinguishes “information services,” regulated under Title I of the Communications Act, from Title II telecommunications services.

AT&T intends to argue that the very fact that it is capable of prioritizing and throttling traffic means that it offers an information service and not a telecommunications service. However, legal experts speaking to Ars Technica believe that AT&T’s claim rests on a selective reading of the law.

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But AT&T will likely not be the only broadband provider suing the FCC once its proposed rules are approved at the February 26 meeting. Even though ISPs are planning to challenge the regulations in court, Wheeler’s proposed rules are not as onerous on broadband providers as they could have been. The FCC will not regulate prices for ISPs, as it could if it treated them as full public utilities rather than the broader category of common carriers. The FCC also does not plan to enforce “last-mile unbundling,” which would require cable companies to rent their infrastructure to competitors in order to foster competition in the broadband market.

About the author

Jay is a freelance journalist, formerly a staff writer for Fast Company. He writes about technology, inequality, and the Middle East.

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