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FCC net neutrality decision sets up court battle

By Grant Gross
January 19, 2011 01:28 PM ET

IDG News Service - The U.S. Federal Communications Commission's recent vote to impose Net neutrality rules on broadband providers will lead to lengthy court battles, as well as efforts in Congress to repeal the rules, a group of Internet law experts said Wednesday.

Even supporters of the FCC's Dec. 21 vote predicted that multiple court challenges are likely as soon as the FCC officially publishes the new rules in the Federal Register. Court challenges to the rules are "inevitable," said Colin Crowell, former senior counselor to FCC Chairman Julius Genachowski .

Multiple lawsuits in courts across the U.S. are likely, with some questioning the FCC's authority to make rules affecting Internet service providers and other groups suggesting the rules are arbitrary, added Markham Erickson, executive director of the Open Internet Coalition and a supporter of the rules. The new rules prohibit service providers from selectively blocking or slowing Web traffic.

None of a panel of four Internet law experts speaking at the Congressional Internet Caucus' State of the 'Net conference explicitly predicted the outcome of the lawsuits, although Larry Downes, a technology author and fellow at the Stanford Law School Center for Internet and Society, suggested that the courts or Congress would make changes.

"This was an effort by the FCC to punt this down the road, both to the courts, because the legal challenges are inevitable, and to Congress," he said. The net neutrality vote was an effort to get the issue "off their plate, so they can move on to some more important issues."

While the panel seemed to agree on the possibility of lawsuits, they said the prospects of congressional action are less certain. U.S. Rep. Marsha Blackburn (R-Tenn.) predicted Tuesday that Congress would repeal the net neutrality rules, but it's unlikely that President Barack Obama, a longtime supporter of Net neutrality rules, would sign the repeal, panelists said.

Asked why House of Representatives Republicans plan to push a repeal even if it won't succeed, Christopher Yoo, director of the University of Pennsylvania Law School Center for Technology, Innovation and Competition, said that lawmakers will use the repeal effort to show voters they are against this type of regulation. "It's good politics," he said.

The Net neutrality vote at the FCC may also set up a long-term effort to rewrite the Telecommunications Act of 1996 for the Internet Age, Yoo said. Congress and the FCC should "tread lightly and carefully" when exploring new rules for the Internet because of rapid changes in technology, including a fast move by Internet users to mobile broadband, Yoo added.

Court action on the net neutrality rules may preempt any congressional action, said Crowell, founder of Crowell Strategies, a public policy consulting firm. He'd rather see Congress focus on other issues, such as clearing spectrum for mobile broadband and reforming the Universal Service Fund, which subsidizes traditional telephone service, he said.

Yoo agreed, saying that the net neutrality debate was less important than spurring broadband competition and implementing the FCC's national broadband plan, released last March. The net neutrality debates in recent years "probably generated much more attention than they deserved," he said. If broadband competition was "robust enough, all these issues would go away," he added.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

Reprinted with permission from IDG.net. Story copyright 2014 International Data Group. All rights reserved.
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