Academic journal article Rutgers Computer & Technology Law Journal

Development of Net Neutrality Rules: Is the Third Time a Charm?

Academic journal article Rutgers Computer & Technology Law Journal

Development of Net Neutrality Rules: Is the Third Time a Charm?

Article excerpt

I. INTRODUCTION II. ECONOMIC FRAMEWORK TO DELINEATE THE SCOPE OF        COMMISSION AUTHORITY UNDER SECTION III. PARTIAL CLASSIFICATION OF BROADBAND INTERNET        ACCESS SERVICE OFFERED TO EDGE PROVIDERS        A. What is the new remote delivery service?        B. Why is there a new remote delivery service?        C. On the other hand, is there really a distinct remote            delivery service?        D. If a distinct remote delivery service really exists, is           it a telecommunications service? IV. CONCLUSION 

I. INTRODUCTION

Since defining transmission of Internet traffic over last-mile broadband facilities as outside the definitional scope of a telecommunications service, (1) the Federal Communications Commission ("FCC" or the "Commission") has struggled to develop a regulatory regime for Internet services that is judged by the courts to be legally sustainable. Specifically, the FCC has twice failed in front of the D.C. Circuit to impose some version of neutrality (or openness) rules on Internet broadband service providers (BSPs) governing last-mile commercial arrangements with edge providers. (2) Most recently in January 2014, the D.C. Circuit remanded the Open Internet order case to the Commission for further proceedings consistent with its opinion. (3) The remand opinion contained three significant decisions/findings. First, a significant hurdle in the Commission's efforts to establish statutory authority to govern the business conduct of BSPs was overcome in spite of the remand. Specifically, analyzing statutory language contained in Section 706 of the Telecommunications Act of 1996 (47 U.S.C. [section] 1302), the D.C. Circuit unanimously concluded that the Commission possessed positive regulatory authority to enact regulatory measures encouraging the deployment of broadband infrastructure. Second, and equally significant, a majority (two of three members) of the D.C. Circuit found the specific rules addressing transparency, anti-blocking, and anti-discrimination promulgated by the FCC consistent with the authority contained in Section 706. Specifically, the D.C. Circuit majority concluded that "... its [referring to the FCC] justification for the specific rules at issue here--that they will preserve and facilitate the 'virtuous circle' of innovation that has driven the explosive growth of the Internet--is reasonable and supported by substantial evidence." (4) In short, the FCC has statutory authority to develop rules governing BSPs' treatment of edge providers Internet traffic within last-mile facilities. In particular, these rules can impose restrictions that govern the commercial relationship between BSPs and edge providers (or more specifically, content, applications, and service providers) if the purpose of such rules is designed to promote the development of broadband infrastructure.

Third, the D.C. Circuit made it clear that net neutrality rules must also be consistent with other parts of the 1934 Communications Act. In particular, this means that, given the FCC's current classification of BSPs as information service providers subject to Title I authority with its light-touch regulation, these rules must not place such severe restrictions on the commercial freedom of BSPs that they effectively become treated as common carriers subject to Title II with its more onerous set of regulations. (5) Accordingly, the net neutrality rules are subject to a common carrier prohibition. However, in the view of the D.C. Circuit, the specific anti-blocking and anti-discrimination rules developed in the Open Internet order crossed the line and treated BSPs as common carriers. The rules restricted BSPs' freedom to determine which edge providers that they must provide service and the terms and conditions of the service provided. (6)

In order to address this legal constraint, there are two general paths that the FCC outlines in the remand proceeding to address the common carrier prohibition. …

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