Back in February, the FCC declared that ISPs were common carriers, and as such they could be regulated like phone providers. This set a framework for a free and open internet; however, it wasn’t long until the legal challenges arose. Now two specific threats could make or break for net neutrality.
The first of the two major challenges comes from ISPs that argue they are not common carriers, and the FCC has no right to regulate them as such. These are the same arguments made by ISPs since before the FCC’s decision in February, and the arguments largely remain the same.
An industry trade group, USTelecom wrote in a legal brief challenging the FCC policies:
Congress never envisioned entrusting the FCC with the extraordinary authority that the order purports to exercise or subjecting the Internet to intrusive central-planner-style oversight.
The second stumbling block for the FCC could be a piece of legislation in congress that could withdraw funding for the new Title II regulatory push. A rider to a larger spending bill reads:
None of the funds made available by this Act may be used to regulate, directly or indirectly, the prices, other fees, or data caps and allowances (as such terms are described in paragraph 164 of the Report and Order on Remand, Declaratory Ruling, and Order in the matter of protecting and promoting the open Internet, adopted by the Federal Communications Commission on February 26, 2015.
The purpose of the spending bill is to secure emergency funding to prevent a government shutdown. There has been substantial presidential and public support for the Title II reclassification, but it’s unclear if that will outweigh the need to keep the government functioning.
Some questions raised by the judges in the case have already given hope to some activists. The judges seem skeptical of the arguments presented by the ISPs, and seem largely to be in favor of greater consumer protections, deferring to the supreme court “Brand X” case that agreed with the FCC’s claim that it has the right to regulate ISPs.
If the FCC is to actually begin regulating, and emerge from the tangled web of legal challenges, it will have to clear both of these hurdles; doing so could mean the difference between a free and open internet, and one partitioned and throttled by providers.