The Federal Communications Commission's Internet neutrality or “open Internet” decision was published in the Federal Register last month. Although some already have filed legal challenges, that Federal Register publication triggered the deadlines for filing court appeals and petitions asking the commission to reconsider certain parts of its decision.
To be sure, the judicial challenges will be many, and would not be resolved until a court renders its ruling, likely well over a year from now. So,now we must ask how best we can gain some certainty as to the rules that govern our Internet economy.
At a fundamental level, stakeholders on all sides of the net neutrality debate agree on basic principles: all consumers should be able to access the websites and information they want, and that Internet service providers should not engage in blocking, throttling or paid prioritization. The question now is whether the FCC’s new rules will survive that onslaught of legal challenges.
To be frank, the FCC’s track record in defending its Internet rules has been less than impressive. In early 2014, a federal appeals court rejected FCC rules, adopted in 2010, that had incorporated such basic principles.
On the one hand, the text of the FCC’s new decision expresses great confidence that the order will survive these judicial tests. To this end, the order relies on several provision of the Communications Act – the congressional statute that gives the FCC its authority to regulate. Among the provisions is Title II, the section of the statute applicable to “telecommunications carriers,” and under which the agency could adopt some or all of the “common carrier” rules that typically have been applied to phone companies’ voice services.
On the other hand, FCC Commissioner Ajit Pai, one of the leading critics of the FCC’s actions, believes – as do most Republican, and some Democratic, members of the House and Senate — that the FCC’s new rules reclassifying the regulatory framework for broadband Internet services may violate the Communications Act and past judicial precedent on these matters.
So where do we go from here? Prompt enactment of new congressional legislation may be the answer.
If the open Internet rules are rejected by the courts yet again, consumers and Internet service providers alike will remain in a nebulous state of uncertainty, including regulatory limbo about what protections consumers then would have against blocking, throttling or provision of paid priority services by ISPs. Bipartisan congressional legislation would resolve this overhanging uncertainty, while preserving open Internet principles that would provide some regulatory stability for the future.
There are strong incentives on both sides of the House and the Senate to come together and pass legislation that could be signed by President Obama. Yes, bipartisan legislative kumbayas are rare these days. But the future of a truly open Internet is at stake here, and justifies some leadership and cooperation among the legislative and executive branches of our federal government.
Barry Umansky is a professor at Ball State University’s Digital Policy Institute. The opinions are the writer's.