Net Neutrality Is Still Not Finalized

Carl Weinschenk
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The recently departed and much-loved Yogi Berra famously said that it ain’t over ‘til it’s over. In the case of the battle over net neutrality, Yogi could have been even more succinct and said that it’s never over.

It seemed that the issue was finally settled earlier this year when the Federal Communications Commission (FCC) laid out final rules. Smarter heads knew, however, that the decision would be appealed. Oral arguments in the case, which is before the U.S. Court of Appeals for the District of Columbia, were held last Friday. 

CNET’s Marguerite Reardon offers a nice roundup/Q&A on where things stand. The main takeaway from her report is that the case – which was brought by wireless trade groups and questions whether the FCC has the right to change the classification of broadband – seems to favor the FCC.


Indeed, that wasn’t Reardon’s opinion. It was one of the judges:

Minutes into the industry lawyer's opening statements, Judge David Tatel set the tone for the three-hour hearing, pointing to case law that favors the FCC's position. He cited a Supreme Court opinion in 2005 that gives the agency the authority to categorize communications services anyway it sees fit.

Dante D’Orazio, who covered the hearing for The Verge, also thinks the FCC has the upper hand. He wrote that the last time around the court found that the FCC lacked the right to regulate ISPs because they were not classified under Title II. That objection is no long relevant, because that is precisely what the FCC did in response to the ruling. Now, the issue is whether the FCC had the right to reclassify. That seems a bit weaker.

Both D’Orazio and Reardon said that the status of wireless regulation, another topic of the hearing, is less certain:

As for the question of wireless regulation, the results seemed a bit more murky, with the judges questioning the assertion that wireless and broadband services are ‘functionally equivalent.’ However, according to Harold Feld of interest group Public Knowledge, Judge Sri Srinivasan appeared to be against the idea of different classifications for the two services. The judge asked a CTIA lawyer: ‘So if I’m walking in my house with an iPad — at one end of the hall I connect to my Wi-Fi, at the other end, my device switches over to my wireless subscription — did Congress really intend these two services to be regulated totally differently even if I can’t tell the difference?’

The question may come down to whether the technical differences between wired and unwired – in terms of capacity and quality – justify different regulatory regimes. In other words, though they do much the same job, are they really fundamentally different technologies?

Another potential problem doesn’t involve the courts. At the highest level, the issue is a product of the jockeying that is going on in Congress over the budget. Social Times' Kimberlee Morrison points to legislation that would avert a government shutdown, but would not fund the FCC’s efforts to regulate under Title II. It is very unclear what will happen, since it is common for the budgeting process to be used as ammunition in broader skirmishes between the executive and legislative branches. It is another issue of which to keep abreast.

The budget battles will continue, and the loser at the district court level no doubt will take it to the Supreme Court. If Yogi were still with us, he no doubt would have something funny to say.

Carl Weinschenk covers telecom for IT Business Edge. He writes about wireless technology, disaster recovery/business continuity, cellular services, the Internet of Things, machine-to-machine communications and other emerging technologies and platforms. He also covers net neutrality and related regulatory issues. Weinschenk has written about the phone companies, cable operators and related companies for decades and is senior editor of Broadband Technology Report. He can be reached at cweinsch@optonline.net and via twitter at @DailyMusicBrk.



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