Net Neutrality Heads to Court & Congress

Now that the vote is over, the FCC's controversial Restoring Internet Freedom Order faces a new set of challenges. The court of public opinion has largely weighed in against the ruling, which repeals net neutrality regulations set in place under the 2015 Open Internet Order. However, the perspective of the country's highest court of law is still an open question, as is the majority viewpoint in Congress.

Federal Communications Commission (FCC) Chairman Ajit Pai and his fellow Republican commissioners believe they are on firm legal ground with their repeal of net neutrality rules. Pai's argument is that the Supreme Court decided in 2005 -- in the case of the NCTA et al versus Brand X Internet Services et al -- that the FCC can regulate broadband as an information service rather than a telecommunications one.

"At a very high level, number one, in terms of substantive law, there's no question that what we did was lawful," Pai asserted during a press conference after last week's FCC vote. "If you look at the Supreme Court's decision in Brand X, the majority of the Supreme Court expressly said that the FCC has the ability to classify broadband Internet access as a Title I information service."

FCC Chairman Ajit Pai speaks at a press conference following the net neutrality vote

Pai is right. The Supreme Court did say in 2005 that the FCC could regulate ISPs under Title I of the Communications Act rather than as common carriers under Title II.

There's more to the story, however. In 2016 the US Appeals Court for the DC Circuit also declared separately that the FCC has the right to regulate broadband as a telecommunications service. Opponents continue to pursue an appeal of that Appeals Court decision, but when it was passed last year, it upheld the 2015 Open Internet Order. (See FCC Wins Key Net Neutrality Ruling.)

The question still unanswered is how the Supreme Court might rule today. Could the highest court determine that the Appeals Court effectively made the Open Internet Order the law of the land? Or is it more likely that the Supreme Court would fall back on the determination that the FCC has the right to decide at any time how broadband service should be regulated, thus supporting the decision of the current agency leadership?

As Republican Commissioner Brendan Carr pointed out during a statement prior to the FCC's vote last week, Title I classification of broadband "remains the only classification blessed by the Supreme Court." If and until the Supreme Court takes up the issue again, the FCC majority will use that argument as its legal basis for passing the Restoring Internet Freedom Order.

But what about Congress? The legislative branch of government could also choose to step into the fray with a law that supersedes the FCC's authority. Senate Minority Leader Charles Schumer (D-NY) has said he will do just that by forcing a vote under the Congressional Review Act (CRA) to overturn the latest FCC order. The Senator would need a majority of legislators to support his position in order to get such a vote passed, however, and it's not at all clear that such a majority exists.

Several Republican lawmakers previously expressed their concern over the Restoring Internet Freedom Order, knowing that their constituents don't support it and are wary of voter response. (See FCC Ends Net Neutrality.)

Yet getting Republicans and Democrats to agree to anything in Congress is a tall order. Democrats will push to return to Title II regulation, but whether enough Republican lawmakers will support a move that directly counters the Republican-led FCC is still a big unknown.

There is yet another option. Congress could theoretically compromise with a bill that would maintain bright line net neutrality rules -- no blocking, throttling or paid prioritization -- but still classify broadband as a Title I information service. Financial analyst Craig Moffett has suggested that this may have been Chairman Pai's plan all along because it would give a perceived victory to both sides of the debate. (See Here's Pai in Your Eye.)

Such a move wouldn't satisfy many net neutrality activists, but it might be the only path forward in the current legislative environment.

And there's still one more wrinkle. There's a multi-state lawsuit in the works led by New York Attorney General Eric Schneiderman. Schneiderman contends that the process for debating net neutrality at the FCC was corrupted because of millions of fraudulent comments submitted to the agency and not subsequently investigated by FCC authorities. The New York Attorney General along with several lawmakers had requested a delay of last week's vote to study the matter further. With that request denied, it appears that Schneiderman may use the FCC's lack of investigation as a way to challenge the net neutrality vote on an administrative or procedural basis.

In summary, the only certainty for net neutrality is that lawsuits, legislation and court appeals will continue. For good or ill, the war for the Internet is far from over.

— Mari Silbey, Senior Editor, Cable/Video, Light Reading

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