Author: Eric Null, Senior Articles Editor, Cardozo Arts & Entertainment Law Journal
The debate about network neutrality—the idea that packets of information traversing the pipes that connect us to the Internet should be treated equally and on a best-efforts basis—is not going away. It continues to rear its ugly head as the government and the industry engage in an intense battle over whether the Internet should continue in its path to centralization, or whether the government has the power and the wherewithal to stop it.
The FCC Open Internet regulation left some issues wide open, including what to do about wireless Internet providers (the industry is relatively nascent, so the FCC took a hands-off approach for now). Already, the FCC is being challenged in court, and the industry is taking advantage of the relaxed rules.
Verizon and MetroPCS Challenge the Open Internet Regulation
These days, when the FCC takes one(-half) step forward, the industry attempts to push it back. Typically, industry argues the FCC lacks the authority to regulate. Because the FCC’s authority is ancillary regarding cable/wireless providers, this claim is made with impunity. The Open Internet regulation is no exception.
Verizon originated this suit in early 2011, but the D.C. Circuit Court of Appeals dismissed it for ripeness reasons—the rules had not yet been published in the Federal Register. Thus, come the day the rules were published, September 22, 2011, the suit was re-filed. Recently, the industry won a procedural victory when the court denied the FCC’s request to hold the proceeding in abeyance while the FCC reviewed a petition for reconsideration regarding the scope of “specialized services”—a type of service that shares broadband capacity but is not necessarily access to the Internet (ISP-provided VoIP services, for instance). Thus, the case will proceed as planned without accounting for the rule clarification.
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The views expressed here are exclusively of the author and do not represent agreement or endorsement by the Cardozo Arts & Entertainment Law Journal, Benjamin N. Cardozo School of Law, or Yeshiva University.