Originally published: January 16, 2014
Last updated: January 16, 2014 - 9:53pm
[Commentary] The reports of network neutrality’s death have been greatly exaggerated. Yes, the DC Circuit Court of Appeals vacated the heart of the Federal Communications Commission’s open Internet rules. But it also, more quietly, ruled that the FCC has authority to regulate broadband providers to protect Internet openness. In doing so, the court may have handed the FCC -- and the public -- a victory that goes well beyond network neutrality. The court vacated only particular rules, not the FCC’s ability to act in the future. Specifically, it concluded that the FCC could regulate Internet providers under a statute known as Section 706, which authorizes the FCC to take various steps to promote broadband deployment.
The court correctly recognized that prohibiting blocking and discrimination can lead to greater broadband deployment by increasing consumer demand. The court objected to FCC’s current versions of the rules because they swept too broadly and indiscriminately. In affirming Section 706 authority, however, the court simultaneously opened the door for the FCC to implement similar versions of these rules on a case-by-case basis against individual access providers who abuse their monopoly. In legal terms, the FCC can now act through adjudications instead of rulemakings. Indeed, one bedrock principle of administrative law is that agencies are generally free to enforce law through either method. The FCC still has sufficient authority to protect the open Internet. The million-dollar question is whether it will choose to use it — and whether the public will pressure it to do so. Following the opinion, Chairman Tom Wheeler stated his preference to proceed in a “common law fashion,” which is legalese for individualized decision-making. I am therefore tentatively hopeful that the FCC is heading in this precise direction.
[Blevins is a law professor at Loyola University New Orleans College of Law]
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