Barbara van Schewick and Morgan Weiland have a look in a Stanford Law Review article. Required reading if you are following network neutrality.
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The bill drastically limits the FCC’s ability to implement and enforce the network neutrality-related provisions of the bill and strips the FCC of any other source of authority that might allow it to regulate ISPs at a later stage.
In implementing laws, an agency usually has the choice of whether to proceed by rulemaking or case-by-case adjudication. By contrast, the bill strips the FCC of any rulemaking ability related to the provisions of the bill.[40] This is a huge problem. It makes it impossible for the FCC to adopt implementing regulations that give meaning to the more ambiguous provisions of the bill—of which there are quite a few—or to address future network neutrality-related problems as they arise. According to the bill, the FCC can enforce the law only case by case in reaction to complaints and “may not expand” the bill’s network neutrality-related provisions, “whether by rulemaking or otherwise” (e.g., in adjudications).[41] By explicitly restricting enforcement to the adjudication of complaints, the bill also seems to remove the FCC’s ability to investigate violations of the bill on its own motion—an option the FCC specifically mentioned in the Open Internet Order.[42]
Tying the FCC’s rulemaking hands and restricting it to adjudicating complaints creates several problems. First, it creates huge uncertainty, as the FCC has to wait for a complaint in order to address how ambiguous terms will be applied.[43] Second, it tilts the playing field in favor of large, established players like the large ISPs or large applications or content providers that have the resources necessary to engage in protracted and costly FCC proceedings. Finally, case-by-case approaches are less likely to result in decisions that adequately protect the values and actors that network neutrality rules are designed to protect.[44]
Moreover, the bill strips the FCC of any other authority it might use to regulate ISPs. It legally defines “the provision of broadband Internet access service or any other mass market retail service providing advanced telecommunications capability (as defined in section 706 of the Telecommunications Act of 1996)” as an information service,[45] making it impossible for the FCC to reclassify these services as telecommunications services under Title II of the Communications Act.
And the bill goes even further by removing the FCC’s existing authority to regulate broadband providers. So far, the FCC has been regulating ISPs based on its ancillary authority, coupled with section 706 of the Telecommunications Act of 1996. According to the FCC’s interpretation, which was upheld by the Court of Appeals for the D.C. Circuit in Verizon v. FCC,[46] section 706 allows the FCC to adopt measures that foster broadband deployment. While section 706 does not allow the FCC to impose common-carrier-type rules on entities that—like ISPs—have not been classified as telecommunications services under Title II of the Communications Act, it does allow the FCC to adopt other regulations as long as they foster deployment. The bill abolishes that option by inserting a provision into section 706 that prohibits the FCC and “State commission[s] with regulatory jurisdiction over telecommunications services” from relying on section 706 “as a grant of authority.”[47]
These restrictions on the FCC’s authority have ripple effects beyond network neutrality. Most immediately, the bill would make it impossible for the FCC to rely on section 706 to preempt state laws that prohibit cities from building and running city-owned broadband networks, an approach it planned to take and that President Obama endorsed last week.[48]
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a tip of the hat to Barbara
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