Will Net Neutrality Be Short-Lived?

Could history repeat itself in the ongoing debate over network neutrality? One legal expert thinks so. Litigation over the Federal Communication Commission’s vote to use Title II to regulate the Internet is inevitable, according to Michael Botein, professor of law, emeritus, at New York Law School. He believes the FCC’s latest ruling could be overturned, similar to what happened to the “crude form” of network neutrality it adopted in 2005. That decision was vacated by the US Court of Appeals for the District of Columbia Circuit in January 2014.

Botein said that the FCC created a much bigger target for critics by invoking Title II as a big part of its regulatory authority. “Assuming that someone pulls the trigger, it seems likely that any litigation will be long, expensive and hard to settle,” Botein said. “It also seems a bit strange that there was not more of an attempt to limit the impact of any Title II regulation at all, and thus minimize the fighting and collateral damages.” Botein agreed that the debate could be far from over. He noted that people have continually referenced Title II regulation, but how it was applied in the past was “incredibly simplistic,” to the point where if consumers paid the appropriate rate for services, they were entitled to receive that service as “good” as anyone else. There was no “fine print” as to how quickly the service had to be provided, the quality, or long list of details. “Common carriage was explicitly seen as a means of promoting competition, and as long as vendors sold at roughly the same prices for the same quantities, they were in compliance with what we’d call Title II today,” Botein said. “Surprisingly enough, this aspect didn’t get much attention [from the FCC, and it] … may be particularly important if the commission does not enter into detailed regulation -- but rather just broad, sweeping generalizations -- as may be likely.”