June 2016

It is unlikely that the US Court of Appeals for the District of Columbia’s ruling upholding network neutrality regulations will see a Supreme Court review, leaving advocates of an open Internet with a historic victory say legal experts on both sides of the debate. Reed Hundt, Federal Communications Commission Chairman during the Clinton administration, said the dissenting opinion — written by Judge Stephen Williams, who was appointed to the court by President Ronald Reagan in 1986 — supports the argument that the FCC has the authority to reclassify internet service as a utility, making it unlikely that the Supreme Court will take up the issue. “I agree with the majority that the Commission’s reclassification of broadband Internet as a telecommunications service may not run afoul of any statutory dictate in the Telecommunications Act,” wrote Williams, who concurred in part and dissented in part. He argued, however, the FCC failed to properly justify why it was reclassifying internet services, saying “its explanation of the policy is watery thin and self-contradictory.” Hundt said the FCC decision settled the matters of law and is among the top victories in the FCC’s history.

“SCOTUS does not take up a case unless there is a split in lower courts,” said Matt Wood, policy director at Free Press, an advocacy group that supported the net neutrality rules. John Bergmayer, senior staff attorney at Public Knowledge, which also supported the FCC’s net neutrality rules, agreed. There is “no legal question for the court to take up,” he said. Even Christopher Yoo, a telecommunications law scholar at the University Of Pennsylvania School Of Law who submitted an amicus brief in support of the Internet providers’ argument to strike down the rules, agreed that an appeal would likely be unsuccessful.

[Commentary] Mere transmission of speech doesn’t implicate the First Amendment, for broadband providers or FedEx. A contrary argument means that Ma Bell, with the best lawyers money could buy, missed a winning constitutional argument against its telephone networks being treated as common carriers — they were transmitting speech! The DC Circuit was persuaded that, when broadband providers are simply transmitting, they are not speaking.

I obviously think the D.C. Circuit was right, but I want to emphasize the breadth of the counter-argument. If all transmission of bits is subject to heightened judicial scrutiny (as it would be under First Amendment jurisprudence), then judges would routinely invalidate regulation of a huge and growing range of activity in our increasingly digitized world. Arguments for and against purely economic regulation should be made on their own terms, not by invoking unmoored notions of what speech entails.

[Benjamin is the Douglas B. Maggs Professor of Law, Associate Dean for Research, and co-director of the Center for Innovation Policy at Duke Law School. He served as a consultant to the FCC in the net neutrality proceeding and worked on the order and its legal defense]

Gov Gina Raimondo (D-RI) and others in Rhode Island are over the moon about the recent announcement that GE Digital is adding 100 jobs in Rhode Island—and rightly so. It's been a rough 15 years for the Ocean State. Its economy stalled under its Rust Belt heritage and an influx of Chinese imports in the 2000s damaged its old-line manufacturing industries.

More recently, the Great Recession hit hard in Providence. So, the fact that GE—a storied American brand—has invested in Rhode Island, citing its strong universities, digital talent pool, and quality of life, is a huge vote of confidence and a validation of Gov. Raimondo's strategy for rebooting the state’s economy, which has focused on attracting investments from global, advanced industry firms. This was the core of our strategy research in Rhode Island, which identified growth areas in the advanced economy and suggested steps to expand the state’s technology and digital capacity. Yet, there's more to be said about the Rhode Island win. Beyond the local site-selection coup, the GE announcement speaks to bigger themes about both the direction of the economy and possible ways forward for other older industrial cities.