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

Discover The Best Lawyers in Spain 2025 Edition


by Jennifer Verta

Highlighting Spain’s leading legal professionals and rising talents.

Flags of Spain, representing Best Lawyers country

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

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

How to Increase Your Online Visibility With a Legal Directory Profile


by Jennifer Verta

Maximize your firm’s reach with a legal directory profile.

Image of a legal directory profile

Paramount Hit With NY Class Action Lawsuit Over Mass Layoffs


by Gregory Sirico

Paramount Global faces a class action lawsuit for allegedly violating New York's WARN Act after laying off 300+ employees without proper notice in September.

Animated man in suit being erased with Paramount logo in background

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

The Future of Family Law: 3 Top Trends Driving the Field


by Gregory Sirico

How technology, mental health awareness and alternative dispute resolution are transforming family law to better support evolving family dynamics.

Animated child looking at staircase to beach scene

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 equipment

The 2025 Legal Outlook Survey Results Are In


by Jennifer Verta

Discover what Best Lawyers honorees see ahead for the legal industry.

Person standing at a crossroads with multiple intersecting paths and a signpost.

Effective Communication: A Conversation with Jefferson Fisher


by Jamilla Tabbara

The power of effective communication beyond the law.

 Image of Jefferson Fisher and Phillip Greer engaged in a conversation about effective communication

Safe Drinking Water Is the Law, First Nations Tell Canada in $1.1B Class Action


by Gregory Sirico

Canada's argument that it has "no legal obligation" to provide First Nations with clean drinking water has sparked a major human rights debate.

Individual drinking water in front of window

New Mass. Child Custody Bills Could Transform US Family Law


by Gregory Sirico

How new shared-parenting child custody bills may reshape family law in the state and set a national precedent.

Two children in a field holding hands with parents

Best Lawyers Expands With New Artificial Intelligence Practice Area


by Best Lawyers

Best Lawyers introduces Artificial Intelligence Law to recognize attorneys leading the way in AI-related legal issues and innovation.

AI network expanding in front of bookshelf

Jefferson Fisher: The Secrets to Influential Legal Marketing


by Jennifer Verta

How lawyers can apply Jefferson Fisher’s communication and marketing strategies to build trust, attract clients and grow their practice.

Portrait of Jefferson Fisher a legal marketing expert

Finding the Right Divorce Attorney


by Best Lawyers

Divorce proceedings are inherently a complex legal undertaking. Hiring the right divorce attorney can make all the difference in the outcome of any case.

Person at a computer holding a phone and pen

New Texas Law Opens Door for Non-Lawyers to Practice


by Gregory Sirico

Texas is at a critical turning point in addressing longstanding legal challenges. Could licensing paralegals to provide legal services to low-income and rural communities close the justice gap?

Animated figures walk up a steep hill with hand