Horror movies are famous for their deceptive “false victories” — the part where everyone thinks evil has been defeated, just before the bad guy bursts out of nowhere and the chase is on again. It’s a good analogy for politics, where no win is ever truly secure and every bit of progress must be constantly defended.
Supporters of net neutrality face this scenario right now. After a hard-fought effort last year, net neutrality proponents celebrated when the FCC passed sweeping new rules in February. “This is a big win,” said Senato r Al Franken. Others expressed similar sentiments.
Historically, FCC efforts to regulate net neutrality have fared poorly in court. Twice before, the Washington, D.C., federal appeals court has rebuffed FCC efforts to set standards in this area — in 2008 when it overturned an FCC order punishing a broadband provider for slowing peer-to-peer file sharing traffic, and in 2014 when it struck down the last round of formal FCC net neutrality rules. The new regulations are far more sweeping, and thus far more vulnerable to challenge.
When the courts struck down the FCC’s last try at net neutrality, most observers expected the agency to pass more targeted rules using more solid, reliable legal theories. The court even offered a roadmap for how the FCC could do that. But the agency instead embarked down a far more radical road – not simply passing stronger net neutrality rules, but changing its entire paradigm for regulating the Internet and everything it touches.
The core problem with the FCC’s approach is that it conflicts with the federal Communications Act that gives the agency its power to regulate. The Communications Act requires light regulation for what are called “information services,” while allowing more stringent rules for “telecommunications” like the old Ma Bell telephone monopolies. Internet access is clearly an information service. The FCC has regulated it as such for years and successfully defended that approach all the way to the Supreme Court. But the new rules take a complete about-face and reclassify broadband under the stricter “telecommunications” regime.
Legal experts say this “reclassification” is deeply vulnerable. University of Pennsylvania professor Christopher Yoo, for example, says “reclassification of broadband service would not survive judicial review.” Two of the five current FCC Commissioners also warned these rules would not survive first contact with the courts. That is because Congress specifically defined an “information service” to include “a service . . . that provides access to the Internet” — like broadband. “Telecommunications,” by contrast, only covers pure transmission of information without any processing or manipulation — a definition that cannot apply to the Internet, which could not function without advanced processing and manipulation of data.
The FCC regulations have other legal issues. An agency is held to a particularly high standard when it reverses its prior positions or abandons arguments it previously made in court. The FCC’s about-face on this issue thus creates an extra hurdle.
Other lawyers say the process the FCC used was also flawed – since its first announcement focused heavily on following the roadmap suggested by the federal courts, while the final rules abandoned that approach in favor of radical reclassification.
For those who care about net neutrality, there is only one way to cure these legal defects and survive the coming onslaught in court. Congress must pass legislation to make the core open Internet protections permanent. Legislation would make the entire conflict over information services versus telecommunications irrelevant and put the rules on the strongest possible legal footing.
There is growing interest in both parties to pass legislation along these lines. Anyone who cares about long-term protection for the open Internet should urge them to do so quickly — before the courts strike down a victory many worked so hard to secure.
David Balto served as policy director at the Federal Trade Commission and as an attorney in the Justice Department’s antitrust division.
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