A sharply-divided Federal Communications Commission today passed net neutrality rules, but may have a difficult time defending its actions in court.
The new rules prevent broadband service providers from blocking legal content, services or applications, and from discriminating "unreasonably" against traffic on their networks. For mobile broadband, which the FCC said is in an earlier stage of development, the rules are not as strict.
Legal challenges are all but certain, the FCC commissioners noted themselves.
“The FCC does not have the legal authority to issue these rules,” Commissioner Robert McDowell said flatly. “This new order will fail in court.” A Republican, McDowell voted against the rules, noting that the winter solstice – today - is “the darkest day of the year. This may be one of the darkest days in FCC history.”
For the FCC, coming up with legal authority to justify the move was not a simple undertaking.
In April, the U.S. Court of Appeals for the D.C. Circuit in Comcast Corp. v. FCC unanimously ruled that the FCC lacked the authority to regulate the network-management policies of Internet service providers under a theory of "ancillary" jurisdiction. The problem, the court found, was that the FCC did not explicitly tie its assertion of ancillary authority to its statutorily mandated responsibilities.
Today, FCC General Counsel Austin Schlick said that the agency has jurisdiction to act under Section 706 of the Telecommunications Act of 1996, which urges the agency to promote “advanced telecommunications” services.
Republican Commissioner Meredith Attwell Baker didn’t buy it. In voting against the rules, she said that the FCC was acting as a legislator, not a regulator. “Section 706 is not an independent grant of authority,” she said. “The majority replaced the ancillary authority rejected by the Comcast court with equally unbounded direct authority.”
Even Democratic Commissioner Michale Copp, who voted (reluctantly) for the rules, took issue with the legal underpinnings. “We do not anchor ourselves to what I believe to be the best legal framework,” he said. “I pushed as hard as I could to get broadband back where it belongs, under Title II.”
The FCC regulates telephone service under Title II of the Communications Act — a regime that includes rules about pricing and competitor access. Jenner & Block partner Samuel Feder, who was general counsel of the FCC from 2005 to 2008, called reclassifying broadband as a Title II service “the nuclear option.”
To Duane Morris partner Glenn Manishin, using Section 706 to justify broadband regulation is “inane.”
“The commission in the 1990s ruled over and over again that 706 was not a basis for regulatory power. This means that using 706 as the nexus for ancillary jurisdiction will necessarily stoke a hotter fight over the FCC’s reversal of its statutory interpretation, a double whammy.”