Hard Slog Ahead for FCC’s Net Neutrality Rules

Published November 3, 2011

Although the Federal Communications Commission passed network neutrality regulations on December 21, 2010, enforcement is being delayed by challenges in Congress and in the courts.

The FCC entered its net neutrality regulations in the Federal Register in September 2011, which meant the rules would become effective in November 2011. However, a Republican majority in the House of Representatives had registered its official disapproval in February 2011, and Verizon has weighed in with a legal challenge to rescind the rules, scheduled for the same U.S. District Court that overturned the FCC’s attempt to enforce net neutrality on Comcast in April 2010 on the grounds the agency doesn’t possess the authority to promulgate rules and may only enforce regulations passed by Congress.

The Republican majority opposing net neutrality in the House may be offset by the Democratic majority in the Senate, says Seton Motley, president of LessGovernment.org. However, Motley says, the 2012 election may tilt the Senate closer to a majority opposing the FCC rules.

“Net Neutrality may very well be the least popular of President Obama’s myriad fiat jobs,” he said. “Ninety-five 2010 Congressional candidates signed a pro-net neutrality pledge, and all 95 lost.”

‘Stand Back and Watch’
It is unclear how any potential appeal of the rule might be handled by the courts, says Charles Zdebski, co-chair of the utilities and telecommunications practice for Eckert Seamans Cherin & Mellott, L.L.C., Washington, D.C.
“It is somewhat ironic to think of the case as a debate over the free market. At this point it is more a Clash of the Titans between some of the largest, richest, and most powerful corporations in the country and the politicians and regulators that support one side or the other,” he said.

“The owners of the infrastructure—the communications networks, the fiber, cable, and pipes; the information superhighway—don’t want to be told how to manage it. The owners of the information—the software providers, the content companies, the Web companies, and the makers of the apps—don’t want their drive down the superhighway subjected to toll booths and traffic signs. So, pick a side—Verizon or Google—and stand back and watch,” he explained.

Mike Wendy, president of Media Freedom.org, says there’s no economic or legal justification for the FCC’s rule.

“The whole net neutrality rule, based on an exceedingly small number of net neutrality violations and built upon wild conjecture that the Internet will come crashing down unless the FCC protects it—contrary to the unregulated vibrancy of the marketplace—is arbitrary and capricious,” said Wendy.

“Moreover, the regulation was crafted by the FCC with self-made authority against the stated will of Congress, which only compounds its infirmity before the law. Consequently, the entire net neutrality regulation should be tossed out. It is illegal. It is unjustified. It is unwanted by those who value free markets,” he added.

Phil Britt ([email protected]) writes from South Holland, Illinois.