Earlier this year, the Federal Communications Commission (FCC) released its ruling for an Open Internet, which reclassified broadband providers as telecommunication services, as opposed to informational services. As a result, the FCC has broad authority to regulate and prevent broadband providers from blocking or degrading Internet traffic in order to prioritize other traffic. Following the ruling, the United States Telecom Association (USTelecom), an industry trade group representing telecommunications and broadband providers, responded by filing a lawsuit in the D.C. Circuit, in which it claims such rules are arbitrary and capricious.
Columbia Law School Professor Tim Wu has been a longtime advocate for net neutrality and joined in on the recent issue by filing an amicus brief, which supports the FCC authority through an application of administrative law. In particular, Professor Wu challenges the claims that Congress, in passing its Telecommunications Act of 1996, unambiguously intended for broadband Internet service to be classified as an informational service, and therefore should not be subject to FCC regulation. Instead, Professor Wu argues that the regulatory regime demonstrates an understanding of the Internet industry in flux, thereby making it implausible for Congress to “directly speak” to its approach to broadband Internet services in the 1996 Act. Most notably, the “fact that broadband Internet was unclassified in some areas, and inconsistently classified in others when the 1996 Act passed shows that the FCC’s approach was clearly in a state of flux,” thereby demonstrating a lack of a “long settled regulatory understanding.” As a result, Congress did not ratify a particular understanding of the correct classification of broadband internet services in adopting the 1996 Act. Rather, Congress left open the classification of broadband Internet, leaving the matter to be settled by the FCC administration. Following Chevron, the Courts should defer to the administration’s Open Internet ruling.
Oral arguments on the net neutrality rules are scheduled for December 4.
References: Tim Wu, Br. for FCC as Amicus Curiae in United States Telecom Association v. FCC, No. 15-1063 (2015), http://static.ow.ly/docs/WuAmicusBrief21September2015_3KDZ.pdf
Professor Tim Wu Files Amicus Brief in Net Neutrality Case, COLUMBIA LAW SCHOOL MEDIA (Sept. 21, 2015), https://www.law.columbia.edu/media_inquiries/news_events/2015/september2015/tim-wu-files-amicus-
Brent Kendall, Appeals Court to Hear Arguments Over FCC’s Net-Neutrality Rules, WSJ (Aug. 3, 2015, 6:25 PM), http://www.wsj.com/articles/appeals-court-to-hear-arguments-over-fccs-net-neutrality-rules-1438640757
Jacob Kastrenakes, These are the FCC’s Full Rules for Protecting Net Neutrality, THE VERGE (Mar. 12, 2015, 9:40 AM), http://www.theverge.com/2015/3/12/8116237/net-neutrality-rules-open-internet-order-released