FCC’s Net Neutrality Standards Face Stiff Legal Test…Again

by Matt Klassen on December 3, 2015

With the Federal Communications Commission scheduled to return to court on Dec. 4th to defend the legal foundation of its recently imposed Net Neutrality regulations, you’ll have to forgive me for being a little nervous, because this isn’t the first time Net Neutrality standards have come under fire, and the last time it happenedand the time before thatand the time before that— things didn’t turn out well for the fight for a free and open Internet.

But in February 2015, the FCC promised that things would be different, taking a bold step to reclassify broadband service as a public utility, thus giving the Commission the legal authority to regulate it. It was enough to give the freedom loving world some hope.

The decision to reclassify broadband was made, in part, because of the semi-cryptic legal explanation Judge David Tatel gave for overturning Net Neutrality in the FCC’s legal fight with Verizon, but now as these new regulations stand poised to face their first test, many are wondering if the FCC misunderstood Tatel’s advice, meaning Net Neutrality could once again be completely indefensible.

There’s no question that the decision that stems from this legal proceedings will shape the future of the Internet, a future that looks radically different depending on who you ask. If you ask the FCC, the Net Neutrality regulations rescues the Internet from the clutches of big business, those looking to leverage their roles as broadband providers to dictate content seen on the devices connected to their networks and shut out up and coming competition.

If you’re on the other side, you likely see this as little more than socialist government interference, where onerous rules and regulations will hamper innovation, curtail development, stem network investment and subsequently destroy the world..err.. I mean drive broadband service prices higher and network quality ever lower.

To date the FCC’s Net Neutrality standards have not faired so well in this battle with big business. In 2010 the rules were struck down because of no legal justification, sending the FCC back to the drawing board to knuckle-under to industry demands and create far more friendly rules, which were again struck down in turn. Then in 2014 the FCC was given the way forward, a hint that reclassifying broadband would solve the legality issue. So off it went, reclassifying broadband as a public utility and establishing itself as the regulatory authority over the Internet, or so we thought.

Through the most recent legal upset Judge Tatel agreed that legally enforceable standards were needed to justify the FCC’s regulatory authority, and further agreed that if left unchecked, carriers would likely take advantage of consumers, and finally noted that the rules the FCC intended to implement would only be enforceable if broadband providers were classed as ‘common carriers,’ that is, if Internet service became a public utility.

Now you’ll notice that Judge Tatel didn’t ever say that the FCC had the legal authority to reclassify broadband as a public utility, only that it needed to for Net Neutrality to be legally defensible, and so here we stand, on the cusp of yet another legal challenge, this one likely to dictate the future of the Internet for all.

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Written by: Matt Klassen. www.digitcom.ca. Follow TheTelecomBlog.com by: RSS, Twitter, Facebook, or YouTube.

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