The Federal Communications Commission is currently poised to reinstate its net neutrality rules, which could see broadband reclassified as a telecommunications service. Proposed rules would prevent broadband providers from controlling or throttling internet traffic. These propositions are almost exact replicas of those the US Court of Appeals for the D.C. Circuit upheld in 2016.
In a recent opinion piece, Donald Verrilli and Ian Gershengorn stated in Bloomberg Law that these proposed net neutrality rules are unlikely to survive a ruling from the Supreme Court. This statement goes against the uncertainty that the courts have demonstrated in previous discussions on the proposed rules, which should ultimately uphold them.
The primary issue lies in the classification of broadband internet access service – whether it should be a telecommunications service or an information service. The Communications Act of 1996 placed broadband as a telecommunications service, primarily because it focuses on transmission rather than content services.
However, in 2002, the FCC altered this classification and labelled broadband as an information service. Despite this classification, no Supreme Court justice argues broadband is an information service. Instead, the majority believes the FCC has adopted an acceptable reading of the statute, further affirming that broadband should undergo reclassification to a telecommunications service.
Verrilli and Gershengorn argue that the Supreme Court could invoke the “major questions doctrine” to classify broadband as an information service. However, this is unlikely, given the court’s recent application of the doctrine which emphasizes its use in determining the most natural interpretation of a statute. This was displayed in the Biden v. Nebraska case.
Considering the rules in question are not “major,” and since ISPs claim they are not currently blocking or throttling traffic and have no intent to do so, it seems that these rules would preserve the internet as it currently functions. It reinforces a positive cycle in which content providers invest in their businesses, knowing their content will not be interfered with, and broadband providers expand to handle additional content.
To address concerns that the proposed net neutrality rules could lead to rate regulation and other utility-style regulations, the FCC has made it clear in its proposal that it will use its authority to “forbear” from those requirements.
Written by Christopher Wright, Co-chair of the issues and appeals group at HWG, and former General Counsel of the FCC.