Net neutrality rules could lead to legal quagmire

Mike Snider | USA TODAY

The Federal Communications Commission can expect pushback in Congress and the courts after it makes official its move to regulate the Internet like a public utility to prevent fast lanes on the Internet.

FCC chief Tom Wheeler is expected to propose new net neutrality rules to commissioners by Thursday, with a vote expected at the commission's Feb. 26 meeting.

The new rules would likely increase the FCC's regulatory power to oversee the wired Net and mobile wireless as common carriers, like traditional telephone service, using Title II, a provision of the Communications Act of 1934.

But the adoption of such regulatory powers will likely lead to lawsuits, just as Verizon sued in 2013 to block the open Internet rules that the FCC adopted in 2010. Those rules aimed to ensure that all legal content on the Internet be treated equally by Internet service providers and not blocked or deliberately slowed. A federal court last year decided in favor of Verizon and overturned the FCC's rules.

Already, AT&T has signaled that it might offer its own court challenge of the new rules. "Those who oppose efforts at compromise because they assume Title II rests on bulletproof legal theories are only deceiving themselves," wrote AT&T vice president for federal regulatory Hank Hultquist in a post on Monday.

The FCC should postpone its planned vote on the regulations to give Congress time to work on a bipartisan bill, said Sen. John Thune, R-S.D., who with Reps. Fred Upton, R-Mich., and Greg Walden, R-Ore., has drafted Internet legislation. Their proposal would ban ISPs from offering paid prioritization for faster lanes and prohibit the blocking or deliberate slowing of content, but would not reclassify the Net as a utility. And it also has a "specialized services" provision that staunch net neutrality supporters fear could allow ISPs to sidestep prohibitions on charging for fast lanes.

"If the FCC goes down this path, it gets challenged, it ends up in court (and) it chills investment," Thune said. "So it not only hurts innovation and investment ... but it also clouds the picture for the future."

Internet service providers such as AT&T, Comcast and Verizon argue that the FCC's planned regulation could hamper their businesses and make investment less practical.​

But going the Title II route is a better option, some prominent law and communications professors argue. "A ban on paid prioritization will prevent broadband providers from slowing or breaking the virtuous cycle, particularly by chilling experimentation by emerging 'garage entrepreneurs,'" wrote three dozen university professors in a letter filed with the FCC and sent to the Federal Trade Commission. "If the next Facebook has to pay for an Internet fast lane, the next Mark Zuckerberg might go into investment banking instead of creating the next big new thing on the Internet."

The FCC is "on solid ground" should it face a court challenge, said Michael Carroll of the American University Washington School of Law, one of the 36 who signed the letter.

New net neutrality rules — either from the FCC or Congress — will widely impact the deployment of broadband networks, as well as services such as streaming video.

The FCC's goal, Wheeler said last month at the Consumer Electronics Show in Las Vegas, is a "gold standard" of regulation that provides innovators "open access to the networks ... (and) an environment that provides sufficient incentive for the ISPs to want to invest to build more and better networks."