The legal road ahead for net neutrality and the Restoring Internet Freedom Order

[Commentary] It is nice that network neutrality proponents are finally embracing the arguments that those of us who have been critical of the FCC’s Open Internet efforts have been making for nearly the past decade. This newfound concurrence, however, does raise interesting questions about how the inevitable legal challenge to the Restoring Internet Freedom Order (RIFO) will proceed.

Why the Restoring Internet Freedom Order will probably survive judicial challenge: At this point either the Supreme Court or the DC Circuit have given carte blanche to the FCC to adopt whatever interpretation of these statutes the Commission deems best. All that it needs to articulate are facts that demonstrate the reasonableness of that interpretation — and the courts will defer substantially to the Commission in determining whether those facts are themselves reasonable. But there’s even more reason to expect the courts will affirm the RIFO: Compared to the Open Internet Order (OIO), the RIFO has exceptionally well-developed factual basis and analysis of that factual basis.

What is certain is that the RIFO guarantees another two to three years of exciting net neutrality litigation are coming our way. Net neutrality truly is the gift that keeps on giving.

[Gus Hurwitz is an assistant professor of law at the University of Nebraska College of Law]