Net neutrality forecast: Clear tomorrow, stormy weather ahead

[Commentary] The Federal Communications Commission has, until recently, taken a distinctly hands off approach to broadband services. The results have been nothing short of amazing. The Internet is a free market success story, and the US is the star. All that success ultimately wasn’t enough, however, to keep the FCC from seeking to extend its regulatory reach from the old legacy telephone networks onto the Internet.

Starting a decade ago, the FCC began considering “net neutrality” rules that would impose 20th Century style common-carrier regulations on broadband Internet service providers. On January 14, the DC Circuit handed down a decision in Verizon’s lawsuit challenging the rules. The court overturned the FCC’s prohibition on “discriminatory” (read “customized”) Internet service contracts between ISPs, on the one hand, and content and application providers on the other. But there was also a dark side to the court’s decision. While ruling that the FCC does not have authority to pursue the specific regulatory approach it adopted, the court seemed to go out of its way to suggest an alternative legal approach which, if adopted by the FCC in the future, would likely pass legal muster. The FCC’s level-headed Chairman, Tom Wheeler, wasted no time issuing a declaring that while the court decided that FCC has the authority to regulate broadband networks, he has a “strong preference” for doing so in a “common law fashion, taking account of and learning from the particular facts” of each case. Chairman Wheeler’s comments suggest an FCC takeover of the Internet in the short run is pretty unlikely. But while chairmen come and go, statutory authority is forever. For those who value Internet freedom, the expansive authority apparently granted to the FCC by the DC Circuit’s decision will hang as a dark cloud on the horizon for a long time to come.

[Jeffrey Eisenach is Director of the Center for Internet, Communications, and Technology Policy]