On net neutrality, the FCC says it has heard enough from the courts, for now

February 19, 2014

FCC Chair Tom Wheeler just issued a statement outlining how he plans to respond to the D.C. Circuit’s Verizon v. FCC decision vacating key portions of the FCC’s net neutrality rules. It would be surprising if the Chair had not obtained agreement of the other Commissioners from his party before releasing his statement, so we can pretty safely assume that this is the FCC’s plan going forward.

I don’t find anything surprising in the proposals — they line up with the course of action I suggested here after the ruling: the Commission will not reclassify Internet access service as a common carrier service (though Wheeler pointedly noted that the option remains available); will enforce the transparency rule (which the ruling left in place); will apply a no-blocking rule consistent with what its general counsel at oral argument had said the Commission wanted anyway; will adopt a more flexible standard aimed at discrimination, along the lines of the data roaming regulations the D.C. Circuit approved in Cellco Partnership v. FCC; and will forgo judicial review of Verizon v. FCC.

I just want to emphasize that last decision.  A crucial aspect of Verizon v. FCC was the D.C. Circuit’s holding that the Commission has broad authority under section 706 of the Telecommunications Act.  That ruling was huge for the FCC going forward, so much so that if I were general counsel I wouldn’t want the decision to be reviewed. Wheeler has reached the same conclusion. As I noted here (and Berin Szoka and Geoffrey Manne bemoan here) Verizon may have won a pyrrhic victory.

But of course we’re not done yet. This is the United States, which means there’s much more judicial review to come. What D.C. Circuit said of an environmental law applies to almost every statute: “As night follows day, litigation follows rulemaking.”

Stuart Benjamin is the Douglas B. Maggs Professor of Law, Associate Dean for Research, and co-director of the Center for Innovation Policy at Duke Law School. He specializes in telecommunications law, the First Amendment, and administrative law.
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