After years of struggling with what the federal government’s role should be in regulating the “free internet,” the FCC voted to enforce net neutrality rules under Title II of the Communications Act. Under the new Rules, major Internet Service Providers (ISPs) like Verizon, AT&T and Comcast are prohibited from slowing down applications or services, accepting fees for preferential treatment or blocking lawful content. In a nutshell, the rules place ISPs under the same strict regulatory framework that governs telecommunication networks to ensure that all Internet traffic that runs through these providers is treated equally.
While the Rules have been praised by the Obama Administration and the FCC Chairman as “necessary to protect Internet openness against new tactics that would close the Internet,” there has been rapid backlash from opponents.
USTelecom, a consortium of ISPs that had filed a suit against the FCC before the Rules went public, re-filed its suit just minutes after the Rules were published on the Federal Register earlier today. USTelecom claims that the FCC used the incorrect approach to implementing net neutrality standards and argues that the reclassification of broadband Internet access as a public utility is “arbitrary, capricious, and an abuse of discretion.”
Another snag in the implementation of the FCC rules comes from Congressional support of the ISP lobby. Representative Doug Collins, a Georgia Republican introduced a new bill in Congress that would allow Congress to use an expedited legislative process to review new federal agency regulations. The measure would need only a simple majority to pass, instead of the usual 60 votes needed to overcome a filibuster. Essentially, this bill is a quick-stop to what Republican supporters call “heavy-handed regulations that will hamper broadband deployment and could increase taxes and fees.”
Despite this aggressive push-back from opponents, FCC Chairman Tom Wheeler, is optimistic that the Rules will withstand legal challenge. The FCC would likely argue that Title II of the Communications Act of 1934 is ambiguous, and that the FCC should be granted Chevron deference in interpreting and applying it.
While Chevron deference is generous, the future of net neutrality is still uncertain, especially given the coming election. If the FCC loses the initial case and a Republican wins the 2016 Presidential Election, the case will not likely make it up to the Supreme Court for review.
Regardless of politics, one thing is certain — the FCC will be facing a lot of litigation on its net neutrality rules.
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Meera Bhaskar is an editor on the Michigan Telecommunications and Technology Law review, and a member of the University Michigan Law School class of 2016.