Academic journal article Federal Communications Law Journal

Wickard for the Internet? Network Neutrality after Verizon V. FCC

Academic journal article Federal Communications Law Journal

Wickard for the Internet? Network Neutrality after Verizon V. FCC

Article excerpt

Table of Contents    I. Introduction  II. Section 706 as a Grant of Authority      A. The Text of Section 706      B. The Court's Expansive Reading of Section 706      C. The Impact of the Canons of Construction      D. The Legislative History of Section 706      E. The Questionable Empirical Foundation for the Court's         Reasoning III. Limits on the FCC ' s Section 706 Authority      A. Statutory Limits on the FCC's Jurisdiction      B. Common Carriage as a Limit to Section 706 Authority      C. Commercial Reasonableness as an Alternative Standard         1. Impact on Competition         2. Impact on Consumers         3. Industry Practices  IV. Title II Reclassification      A. Legal Barriers to Reclassification      B. Overlooked Implications of Reclassification         1. Common Carriage's Inapplicability to Complementary            Services         2. The Permissibility of Prioritized Service         3. Difficulties Implementing Common Carriage         4. Difficulties Implementing Forbearance V.   Other Implications of the Verizon Decision.       A. State Regulation       B. The Applicability of Network Neutrality to Interconnection          Agreements          1. The Mischaracterization of Peering as Zero-Price             Interconnection.          2. The Multiple Functions Performed by Prices.          3. The Danger of Regulating Interconnection Agreements       C. Case-by-Case Adjudication.          1. MetroPCS/YouTube.          2. AT&T/Apple FaceTime          3. Verizon/Google Tethering Apps.          4. Verizon/Google Wallet.          5. Amazon Kindle/Zero Rating. VI. Conclusion 

I. Introduction

The U.S. Court of Appeals for the District of Columbia Circuit's long-awaited decision in Verizon v. FCC (1) represents a major milestone in the debate over network neutrality that has dominated communications policy for the past decade. In upholding some parts while striking down other parts of the FCC's Open Internet Order, (2) the court reached two major conclusions that together represent both a partial victory and partial defeat for proponents and opponents of network neutrality alike. First, the court ruled that section 706 of the Telecommunications Act of 1996 (3) affirmatively grants the FCC the authority to regulate broadband access providers' treatment of Internet traffic. (4) Second, the court ruled that the Order's nondiscrimination and anti-blocking rules represented an invalid exercise of that authority because they contravened other express statutory mandates. (5)

In striking down these rules, the court appeared to provide a roadmap showing a way to reconstitute nondiscrimination and anti-blocking rules that would withstand judicial scrutiny. (6) Wanting to avoid the risk of being rebuked on network neutrality a third time, FCC Chairman Tom Wheeler proposed rules that adhered closely to the path laid out by the court with respect to the nondiscrimination and anti-blocking rules, while beefing up the transparency rules that withstood judicial review. (7) Advocates of network neutrality criticized the proposal for its failure to reinstate a nondiscrimination mandate. (8) The resulting political pressure led Chairman Wheeler to include language in the proposed rule seeking comment on the more radical step of bringing broadband access within the regulatory regime that governs traditional telephone service. (9) Nondiscrimination has thus emerged as the focus of the network neutrality debate. Although the Open Internet Notice of Proposed Rulemaking that the FCC adopted on May 15, 2014, attempts to characterize nondiscrimination as part of a decade-long, bipartisan policy, (10) nondiscrimination did not appear in either Chairman Michael Powell's initial 2004 exposition of Internet freedoms (11) and from the FCC's 2005 Policy Statement. (12) Instead, nondiscrimination emerged as an issue somewhat later in the debate, when Commissioner Michael Copps began to call for it in a series of separate statements and speeches. …

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