Academic journal article Federal Communications Law Journal

Net Neutrality 10 Years Later: A Still Unconvinced Commissioner

Academic journal article Federal Communications Law Journal

Net Neutrality 10 Years Later: A Still Unconvinced Commissioner

Article excerpt

Table of Contents  I.   Introduction II.  Telecom Regulation and the Role of Government III. A Commissioner's Experience with Net Neutrality IV.  Net Neutrality is Not a Silver Bullet V.   The Democratization of Commerce VI.  Net Neutrality's Tenth Anniversary VII. Conclusion 

"Some men see things as they are and say, 'Why?' ... I dream things that never were and say, 'Why not?'"

--Robert F. Kennedy, 1966 (1)

I. Introduction

From the moment I first heard the words "net neutrality," I marveled at the absolute brilliance of coining such a phrase (2)--one that evokes such a democratic, neutral value proposition, yet threatens disastrous results for our economy. Interestingly, although net neutrality seemingly endorses the free and open nature of the Internet ecosystem, (3) its impact would actually be burdensome and onerous. In fact, this so-called net neutrality goes directly against most American consumers' values, such as competition, freedom of choice, and less government regulation.

At the end of the FCC's first and only investigation on the subject, which involved the slowing of BitTorrent traffic by Comcast, (4) I suggested that we change the dialogue to be much more concerned about whether the Internet is "safe and secure." (5) Those fears have, sadly, come to fruition, as illustrated by recent data breaches afflicting the National Security Agency, (6) the Internal Revenue Service, (7) and the Target Corporation, (8) among many others. Nevertheless, net neutrality seems to still hold the attention of policymakers in Washington, D.C. (9)

The FCC in 2005 issued a seemingly benign "Internet policy statement" (10) under former Chairman Kevin Martin. Then, in 2010, the FCC plowed forward with a newly expanded list of "net neutrality principles." (11) Both forays into regulation of the Internet were held to exceed the legal authority of the FCC by the U.S. Court of Appeals for the D.C. Circuit. (12)

Many scholars have discussed the regulatory and legal history of the latest ruling by the D.C. Circuit in Verizon v. FCC. (13) As a former FCC Commissioner, I would be remiss to minimize the longstanding legal principle of Chevron deference that the judiciary affords federal expert agencies such as the FCC. (14) At the same time, I believe it is equally important that the FCC--indeed, any agency or arm of our government-- acts completely within its legal authority. (15)

In Verizon, the FCC defended its net neutrality rules as a permissible exercise of the Commission's "ancillary jurisdiction," which supposedly emerged from a tapestry of other authorities within the broader Communications Act. (16) The FCC also relied on its authority under section 706 of the Telecommunications Act, (17) which tasks the FCC with encouraging the "deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans" by using, among other tools, "regulating methods that remove barriers to infrastructure investment." (18) Although the Verizon court recognized section 706 as a standalone fount of regulatory authority for the FCC, (19) the court nonetheless vacated the net neutrality rules' core provisions on the grounds that they impermissibly imposed common carriage status on fixed broadband providers. (20)

Despite its duo of losses, the FCC is now developing a third version of net neutrality rules. (21) I cannot imagine it manages to find the authority to promulgate similar rules this time around. As a skeptic of net neutrality regulation, I believe this outcome will be for the best.

II. Telecom Regulation and the Role of Government

Whenever the government acts, interestingly, it is often in reaction to a real or perceived problem that, if left unattended or unregulated, might cause harm. (22) New regulations often emerge after a specific incident, perhaps involving toxic substances, dangerous medications, tainted food, or misleading product advertisements. …

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