FCC Able To 'Run the Table' in Net Neutrality Win, Yoo Says
The FCC needed to “run the table” and win on all counts in the U.S. Court of Appeals for the D.C. Circuit’s net neutrality ruling, and it did so, said Christopher Yoo, professor at the University of Pennsylvania Law School, during a teleconference Wednesday hosted by Recon Analytics.
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Many observers thought the FCC would lose on at least the reclassification of wireless broadband, based on questions raised by judges during oral argument last year, Yoo said (see 1512040058). “Had the court struck down the wireless broadband portions, it would have put a gaping hole in the FCC’s order” especially given the growth of mobile, he said.
The court’s decision could have some implications for FCC regulation of edge providers like Google and Netflix, Yoo said. “If you look at the FCC’s logic, which is about consumer perceptions, all these bundled services that are put together by the edge providers are potentially subject to some scrutiny,” he said. Google, late in the process before the net neutrality order was approved last year, weighed in against reclassification, Yoo said. That “suggests at least they have some concerns over how” the rules “might play out,” he said.
Cable operators are some of the biggest losers from the court’s decision, Yoo said. Cable “had never, ever, been subject to Title II” of the Communications Act before, he said. “The telephone-based companies had been, and this is simply an adjustment to the compliance regime that they’ve had to confront on the voice side,” he said. It’s not as “alien and new” for telcos as it is for cable operators, Yoo said. “I think they had a lot of hopes of trying to avoid this,” he said of cable operators.
Roger Entner, analyst at Recon, said until the court’s decision came down, he thought companies like Verizon would move away from wireline entirely since the D.C. Circuit was likely to stop the FCC from reclassifying mobile broadband. “There goes my theory up in flames because now it doesn’t matter,’ he said. “I see Verizon as a particular loser.”
Entner said T-Mobile also could see a big impact because of its focus on zero-rated content, through Binge On and Music Freedom. “Now the FCC might say that there is no zero rating,” Entner said. T-Mobile would lose a big competitive advantage, he said.
Yoo repeated he doesn't expect the Supreme Court to take a net neutrality appeal (see 1606140040). “The court generally takes issues not cases,” he said. “They don’t take time to correct what they believe to be wrong judgments.” They address “larger issues” that are causing conflicts or problems in the legal system, he said. “Many people would suggest, ‘Oh, the issues are very important,’” Yoo said, “That is not traditionally a basis for deciding whether to take a case.”