Net Neutrality Order Creates Uncertainty, Telecom Lawyers Say
The FCC net neutrality order, including the new Internet conduct standard and case-by-case approach for dealing with interconnection agreements, creates uncertainty that could take years to straighten out, several telecom attorneys said at an FCBA event Monday. Pantelis Michalopoulos of Steptoe & Johnson predicted courts will uphold the order’s reclassification of broadband service as a common-carrier offering (see 1502260043). Public Knowledge Senior Staff Attorney Jodie Griffin and Michael Scurato, National Hispanic Media Coalition policy director, said the order accomplishes the goal of preserving the ability of end users and edge companies to continue sending and receiving content without interference from ISPs.
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Opponents of a Communications Act Title II approach said the order could worsen the digital divide by hindering broadband deployment in minority communities if it's not blocked by courts or Congress. Scott Bergmann, CTIA vice president-regulatory affairs, criticized the order for imposing Title II regulation on an industry with strong competition, and urged Congress to step in.
If the commission receives complaints about rates, “it’s hard to see how the FCC avoids doing rate regulation,” given Sections 201 and 202, and the adoption of a 25 Mbps downstream/3 Mbps upstream broadband standard, which makes it more likely the agency will make a finding of a lack of competition, said Nicholas Degani, an aide to Commissioner Ajit Pai, who said he wasn't speaking for Pai. The agency has said it doesn't plan to engage in utility-style rate regulation, and forbore from those provisions while leaving in place Sections 201’s and 202’s prohibitions again unjust and unreasonable prices, and Section 208, which lets the agency investigate complaints. Degani said last year’s net neutrality rulemaking didn’t delve into issues like public switched networks, a key factor in the order’s justification for bringing mobile under Title II.
Though the agency has said the order creates “bright line” rules against blocking, throttling and paid prioritization, much of the order’s impact remains to be seen, some attorneys said. Brita Strandberg, who represents telecommunications providers at Harris Wiltshire, questioned how reclassification under Title II will affect companies like VoIP providers that use now-reclassified mobile. Reclassification “is a pretty big shift,” in which the more-than-a-decade-old understanding of how broadband should be regulated “has essentially been overruled,” she said. That has created a gray area between what’s still considered a telecom service and what’s an information service, Strandberg said. The order’s justification for bringing mobile broadband under Title II to amend the definition of a public switched network to include data transmission also raises questions for VoIP, she said. Strandberg wondered if VoIP is now subject to commercial mobile radio services 911 rules when using mobile broadband, which is now considered CMRS. The order also left broadband privacy issues unresolved in the eyes of some. The agency Monday announced a stakeholder workshop next month on that issue (see 1503300037).
“There’s a lot of uncertainty here,” Sean Lev of Kellogg Huber said of the order. “What can and can’t be done in interconnection decisions. ... How are complaints going to be handled?” Lev is former general counsel of the FCC.
“God, what a great world you’ll be living in,” said Kim Keenan, CEO of the Multicultural Media, Telecom and Internet Council. “You’ll be billing for every hour.” Keenan, who's concerned about the order’s impact on minority communities, said she backed the goals of the order. She opposed what she called using a “1930s law that was created for a single monopoly.” As important as the value of an open Internet is, Keenan said, it's also important that “we should not leave one child behind” from having Internet access. Michalopoulos disagreed that old laws are necessarily bad, citing the First Amendment. Keenan responded that she wasn't opposed to old laws, but rather to laws that are “old and highly prescriptive.”
Should the order survive challenges under the Administrative Procedure Act (APA), there's “a lot of uncertainty over what that means for administrative law,” said TechFreedom President Berin Szoka. He characterized the Title II debate as a “do-over” of the debate among Democrats over the Title I classification of broadband.
Michalopoulos, who has represented telecommunications, wireless and satellite companies, predicted key aspects of the law will be upheld. The order responded to the U.S. Court of Appeals for the D.C. Circuit’s concerns in striking down the 2010 net neutrality order. The D.C. Circuit struck down imposing common-carriage restrictions on broadband providers without classifying them as common carriers. With reclassification, “that’s taken off the table,” Michalopoulos said. The Communications Act defines a telecom service as the offering of telecommunications for a fee directly to the public. With people making payments to broadband providers each month, he said, “what court is going to say to the FCC it is not” a telecom service, he asked. What the courts decide on other issues on the margins, like the APA, is more unclear, he said.