Insight

What's Next for Network Neutrality?

Attorney Brief: Network Neutrality
Christopher W. Savage

Christopher W. Savage

March 27, 2017 01:47 PM

Back in the 1990s, getting online required a dial-up connection to an Internet service provider (ISP). Dialup had limited bandwidth, but getting into the business was easy: the ISP just had to buy equipment, upstream connections to the Internet, and connect through phone lines for incoming calls.

To overcome dial-up’s limitations, cable operators deployed cable modem service, and telephone companies deployed digital subscriber line (DSL) service. At that time, telephone companies had to offer DSL to competitors, but cable operators didn’t have to share their networks. Dial-up ISPs, desperate for higher bandwidth, pressed for access to cable networks. The issue came to a head in 2002 when the FCC said cable broadband was an unregulated “information service,” not a “telecommunications service,” so no access was required. The Supreme Court agreed in 2005, and the FCC promptly extended the ruling to DSL.

At that time, the FCC issued an “Internet Policy Statement” setting out the basic ideas of net neutrality: unfettered access to all lawful content; the ability to run any lawful applications; and the ability to connect devices that don’t harm the network. The problem was that the FCC had just declared broadband to be unregulated. Where did it get the authority to impose obligations—even just “policies”—on an unregulated market?

Answering that question took 10 years. The D.C. Circuit rejected one FCC legal rationale after another, even as the agency refined and expanded its rules. Finally, in 2015, the FCC reversed its earlier view and held that broadband was a regulated telecommunications service. This provided clear authority to establish network neutrality rules. The D.C. Circuit accepted that decision and approved the FCC’s rules in June 2016.

Treating broadband as a regulated telecommunications service was hugely controversial; both Republican commissioners—Commissioner O’Reilly and now-Chairman Pai—dissented. Chairman Pai has now said he wants to step back and impose only “light-touch” regulation on broadband ISPs.

When control of the FCC shifts from one party to another, it’s natural for the new chairman to pursue a new regulatory approach. So it’s no surprise that Chairman Pai, as a general matter, wants to regulate less heavily. The question is: how will he go about it?

One possibility is to leave the existing legal regime, broadband classified as a telecommunications service, in place while rolling back specific regulatory obligations. For example, the FCC has already exempted small ISPs from some obligations under the rules and has stayed the controversial privacy rules for broadband ISPs. Notably, the current rules already formally “forbear” from applying large swaths of telecommunications regulations to broadband ISPs, and the Pai FCC could choose even greater forbearance.

Another possibility is to go back to viewing broadband as an information service and impose scaled-back regulations using a provision of the law known as Section 706, which the FCC tried to rely on before. The challenge would be that the D.C. Circuit has held, in effect, that Section 706 does not support imposing the core net neutrality obligations—no blocking of, or discrimination against, lawful content—on information service providers. In fact, this ruling is likely what drove the FCC to treat broadband as a telecommunications service in the first place. Chairman Pai may be able to find some viable “light touch” net neutrality rules that would work under Section 706.

Still another possibility is to go all the way back to the original approach from 2005: to simply articulate “policies” that the FCC expects to be respected, even if they are not formally enforceable. This might work because, in 2017 as opposed to 2005, we know that the courts will accept regulating broadband as a telecommunications service. With a highly credible threat of potential regulation in the FCC’s arsenal, this might be enough to accomplish Chairman Pai’s light-touch regulatory objectives.

Nobody knows yet what the new chairman will do. But everyone is watching him closely.

--------------------------------

1 In the Matter of Inquiry Concerning High-Speed Access to the Internet over Cable and Other Facilities; Internet over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet over Cable Facilities, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798 (2002).

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico


by Jennifer Verta

Celebrating top legal professionals in South America and the Caribbean.

Flags of Puerto Rico, Chile, Colombia, and Peru, representing countries featured in the Best Lawyers

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa


by Jennifer Verta

Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.

Flags of Brazil, Mexico, Portugal and South Africa, representing Best Lawyers countries

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background

The Human Cost


by Justin Smulison

2 new EU laws aim to reshape global business by enforcing ethical supply chains, focusing on human rights and sustainability

Worker wearing hat stands in field carrying equipemtn

Beyond the Billables


by Michele M. Jochner

In a recently conducted, comprehensive study, data reveals a plethora of hidden realities that parents working full-time in the legal industry face every day.

Women in business attire pushing stroller takes a phone call