The Open Road Ahead For The FCC's Open Internet Rules

This past year has seen intense debate about "open Internet" or "net neutrality" regulation. Issues such as whether prescriptive rules are needed to preserve the Internet as an open platform and whether the Federal Communications Commission ("FCC") can lawfully adopt them have consumed considerable ink—and more appropriately for this context, innumerable pixels—in the press (both popular and trade), scholarly articles, filings with the FCC, and ultimately, the agency's own 400-page order. There, three Democratic commissioners answered these and other questions in a manner that subjects Internet service providers ("ISPs") to a "modernized" form of common carrier regulation, consisting of many of the obligations that traditionally applied to public utilities as well as additional requirements intended to protect Internet openness.

The release of the FCC's order on March 12 did not mark the end of the matter; it merely shifted the action to other forums. In the coming weeks, months, and years, the substance and fate of the FCC's rules will be decided in several arenas, with plenty of room for participation by industry and other stakeholders. The following discussion provides an overview of the FCC's order and some of its history, and then describes the next battlefields in the ongoing war over the proper regulatory treatment of the Internet.

The FCC's Order

The FCC's recent order is the agency's third attempt at net neutrality regulation—and its third trip to the D.C. Circuit on the subject. In 2008, the FCC relied on its ancillary authority to penalize Comcast for its practices in connection with peer-to-peer file sharing; in 2010, the D.C. Circuit rejected that effort, finding that the agency's ancillary authority did not extend far enough to support that enforcement action.1 In December 2010, the FCC tried again but swept more broadly, citing the directive in Section 706 of the Telecommunications Act of 1996 that it act to encourage broadband deployment to justify rules that prohibited ISPs from blocking lawful traffic online and from engaging in unreasonable discrimination, and required them to disclose certain information about their network management practices, service performance, and terms of service. In 2014, the D.C. Circuit upheld the disclosure rule but rejected the others, finding that the FCC essentially had sought to impose common carrier regulations on ISPs despite long ago declining to treat them as common carriers2—an approach that the Supreme Court previously endorsed.3

Shortly thereafter, the FCC initiated the rulemaking that ultimately produced the recent order. Given the recurring disputes about the agency's authority to act in this area, a central issue of contention in that proceeding was whether the FCC should again proceed based on Section 706 (but with a rationale that hewed more closely to the D.C. Circuit's decision), or whether it should go further and classify ISPs as common carriers subject to all of the regulations that apply to "telecommunications services" under Title II of the Communications Act of 1934 and to new open Internet rules. There was no shortage of opinion on the subject. The FCC later reported that it received over 4 million public comments in response to its notice of proposed rulemaking. One of the more momentous opinions expressed was that of President Obama, who in November 2014 took the unusual step of producing an online video that called for the FCC to reclassify broadband as a telecommunications service and to impose open Internet protections on that basis.

That is the option the FCC ultimately chose. In its order, the FCC reversed several decades of deregulatory precedent and classified ISPs' broadband Internet access...