Daniel Lyons

Ultimately, the ping-pong match of network neutrality will not be resolved by political struggles over control of the Federal Communications Commission. A lasting solution can only come from bipartisan legislation, which will involve compromise. Identifying the points of compromise, places where each side is willing to give ground, is impossible if the two sides see each other as enemies worthy of contempt rather than basically good people who can reasonably disagree, even about important issues.

Over the past several years the Federal Communications Commission has brought sweeping changes to Lifeline, the telecommunications aid program for low-income households. These changes are designed to shift the program’s focus from telephone service to broadband service. Though few would question the need to narrow the digital divide, many (including me) have criticized the way the commission has chosen to do so.

[Commentary] When it came to unreasonable discrimination, the Federal Communications Commission's paid prioritization ban was more restrictive than the obligations that Section 202 placed on the old Bell telephone monopoly. 

[Commentary] Cisco Systems Vice President Jeffrey Campbell highlighted that paid prioritization is “one of the most misunderstood issues” in the telecom policy space. There's a growing realization that prioritization can play a positive role in network traffic management. But to understand why, we need to get beyond the “fast lanes, slow lanes” metaphor that has too often dominated the net neutrality debate. All internet traffic on a network moves at the same speed — the speed at which the electrons propagate on the wire.

[Commentary] The Lifeline program is one of the Federal Communications Commission’s most important, most noble ventures. It is also one of the most problematic, suffering repeated criticism from the Government Accountability Office and others for waste, fraud, and abuse. In an effort to reform the program, the FCC has suggested limiting Lifeline participation to facilities-based telecommunications providers.

[Commentary] Network neutrality advocates have found some new allies in their efforts to combat the Federal Communications Commission’s (FCC) Restoring Internet Freedom Order: state governments. But ultimately, these initiatives are likely to be more symbolic than substantial. While the Communications Act gives states a significant role in telecommunications regulation, both the statute and broader constitutional doctrines limit the ability of a single state (or even a group of states) to dictate national policy.

[Commentary] The DC Circuit denied a petition to rehear en banc its 2016 decision upholding the Federal Communications Commission’s Open Internet Order. The Supreme Court is not likely to hear the case, but while the Justices may not be listening, the telecom policy community should be. The concurrence and dissents engaged in a lengthy and scholarly discussion about broader constitutional and administrative law doctrines raised by the order.

In the process, the concurrence signaled that the DC Circuit may understand the order to apply far more narrowly than anyone expected. The DC Circuit appears to view the Open Internet Order primarily as a hyper-transparency rule: If the company claims to offer an unedited internet experience, then it is required to deliver on that promise. The DC Circuit suggests that a walled garden is fine as long as the provider “mak[es it] sufficiently clear to potential customers that it provides a filtered services involving the ISP’s exercise of ‘editorial intervention.’”

[Commentary] The takeaway is that the public utility model sometimes works well to discipline natural monopolies in stodgy, unchanging fields such as water, where regulation is needed to displace dysfunctional market forces. In dynamic, competitive industries such as telecommunications, public utility regulation is not only misplaced but also affirmatively harmful to consumers. It is rigid and inflexible, precluding industry players from responding to new technological developments in ways that help consumers.

Perhaps more problematically, the public utility model allows politics to replace economics as the primary driver of decision-making, market development, and capital allocation. And this too often permits the process to be captured by incumbents that then insulate themselves from competition — something the electricity industry and old telecommunications hands, know all too well.

[Daniel Lyons is an associate professor at Boston College Law School]

[Commentary] Network neutrality is not a First Amendment issue — or at least, not in the ways supporters suggest.

As any first-year law student knows, the First Amendment says that “Congress shall make no law…abridging the freedom of speech.” The Fourteenth Amendment extends that prohibition to state governments as well. But with rare exceptions not applicable here, the Constitution does not similarly restrict private entities. This limitation, called the “state action doctrine,” is why the New York Times is not compelled to print every letter I write — and why I am not required to let any student speak whenever he or she wishes in my classroom, or my office, or at my dining room table. Simply put, a non-governmental entity may take actions that interfere with a speaker’s desire to communicate a message — and if it does so, the First Amendment is not implicated.

By leaning on the First Amendment, the progressive left suggests that net neutrality is about suppression of speech. Under this framework, the big threat is broadband providers inhibiting access to controversial websites or sites with which they disagree. But such actions are unlikely. The FCC cited no evidence of a broadband provider engaging in such behavior during the two decades before the net neutrality rules went into effect. And any company foolish enough to take such action would be pilloried in the press. In reality, net neutrality is about the more mundane question of vertical integration.

[Lyons is an associate professor at Boston College Law School]

[Commenatary] Several misconceptions about the Open Internet rules are in circulation...this blog post is a first stab at dispelling the most problematic issues:
The Open Internet Order is not a First Amendment issue: Sen Patrick Leahy (D-VT), Sen Richard Blumenthal (D-CT), and Public Knowledge President Gene Kimmelman all suggested that the Open Internet Order is a First Amendment issue. It is not. The First Amendment prevents the government from infringing upon freedom of speech. The Federal Communications Commission’s Open Internet Rules are not designed to curb government limits on speech, so the First Amendment rights of speakers are simply not implicated.
Repealing Title II reclassification is not the same as eliminating the Open Internet.
The Open Internet Order does not protect against higher prices.
The ultimate answer lies with Congress.

[Daniel Lyons is an associate professor at Boston College Law School]