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December 19, 2017

What’s Next in the Battle Over Net Neutrality?

Last week, internet pioneers, including Tim Berners-Lee and Steve Wozniak, sent a letter to Congress, asking members to call on the Federal Communications Commission to cancel its vote to repeal net neutrality: “The FCC’s rushed and technically incorrect proposed Order to abolish net neutrality protections without any replacement is an imminent threat to the internet we worked so hard to create.” Two days later, a group of House Republicans sent their own letter, telling the FCC that its repeal of net neutrality would “restore internet freedom” by clearing the way for investments that will “advance our internet architecture for the next generation.” So, does last week’s repeal of net neutrality threaten or advance the internet?

According to Computer Science Professor Scott Jordan, what comes next is actually a lawsuit. Specifically, he says litigants will argue that “the FCC’s repeal of the 2015 Open Internet Order is not permissible under the latitude the FCC has been given by Congress.” He explains that the lawsuit will work its way through the courts in 2018 and could end up in the Supreme Court.

At the heart of the lawsuit will be the claim that the FCC doesn’t have the legal authority to change the classification of broadband internet service from a telecommunications service to an information service. The lawsuit thus won’t be about the rules so much as the classification, says Jordan, who served as the chief technologist for the FCC from 2014-2016. During that time, he helped the FCC develop the Open Internet Order, which prohibits ISPs from “mucking” with the traffic — that is, from blocking, throttling or prioritizing content against the wishes of consumers.

This prohibition is based on the FCC’s classification of broadband internet service as a telecommunications service. As Jordan says, “the definition has to do with how the internet works, which is where I come in into it, as well as the consumer perception of the service.” Jordan has been researching net neutrality for more than a decade, and he’s currently writing a paper on the history of the internet architecture as well as its legal treatment to address this question of whether broadband internet service is a telecommunications service that should be regulated under Title II of the Communications Act.

The other legal argument, says Jordan, is that a regulatory agency can’t arbitrarily change its mind and reverse course. “You need to give a reason why you’re changing your mind so quickly. This FCC will have a really hard time saying the internet changed that much in just two years.”

We’ll have to see how this plays out in the courts in 2018 and beyond. “The best public policy is made when you integrate an understanding of the technology, economics and the legal regulatory history.” Jordan states that both the internet architecture and regulatory history support regulation of broadband internet service, “unless Congress eventually rewrites the law.” In other words, what’s next for net neutrality is still very much an open question.

— Shani Murray

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