What’s next for net neutrality?

The biggest tech story out of Washington this week was a federal court’s decision that current law doesn’t give the FCC authority to regulate Internet companies’ network management practices.

There’s plenty of speculation about what the FCC is going to do next. Most agree the FCC will try to reclassify broadband as a Title II communications service, which will give the agency broader authority over the industry. Some say Congress will eventually need to get involved to rewrite the 1996 Telecommunications Act to better reflect Web technologies.

We caught up with three Washington telecom lawyers who’ve been following the net neutrality issue from the beginning. Here’s what they had to say about where they think the FCC will go from here.

Glenn S. Richards, Partner at Pillsbury Winthrop Shaw Pittman:

They can always appeal. I’m not a gambling guy but I don’t think they will. I’m not sure how they foresee getting a better decision out of a full D.C. Circuit or the Supreme Court.

They can go to the Hill, find some friends on this issue and try to get (net neutrality) legislated. The bills really never got any traction, but given the make-up of Congress now, is it more likely? You have to wonder in an election year if there’s any legs on something like his. I’m cynical that anything can happen in this calendar year on the Hill.

The Commission can plow forward with its open internet proceeding. The issue isn’t whether they have jurisdiction, it’s whether Title 1 gave them the ability to do more. The FCC can regulate broadband networks because they used to do it. They used to regulate DSL. But the court said, under Title I, you’ve gone too far.

What’s the likelihood of trying to reclassify? If you read the Commissioners’ statements, we’ve got a 3-2 issue already. The ink wasn’t even dry on the decision.

I’m afraid this reclassification overtakes the momentum to do other things, kind of like the broadband plan put a stop to other things. Now there’s a bunch of initiatives in the broadband plan. Is this going to get in the way of these? This could become all-encompassing.

If they do reclassify, I’m not sure they need the open internet principles anymore, except for maybe the transparency principle. All the other requirements will already be in place.

(Richards represents VOIP phone service providers.)

Howard Waltzman, partner at Mayer Brown LLP (Former chief telecom counsel for House Energy and Commerce Committee):

The FCC was very careful to emphasize that what the court rejected was the previous Commission’s view of its authority. That theory has been the primary prevailing theory with respect to network management.

If the FCC attempts to go the route of reclassification, I don’t think that interpretation’s going to be accepted by the courts. The original classification is 12 years old–it was first adopted by the FCC in 1998.

It was adopted for for the cable modem in 2002, wireline broadband service in 2005, and for broadband over powerlines in 2006. They’re classified as information services.

For the FCC to reverse 12 years’ worth of decisions, they’d have to make a factual demonstration that the manner in which broadband services are offered today are different from the time that the FCC viewed broadband as an integrated service.

Can the FCC go down the route of reclassifying broadband as Title II? As a statutory interpretation of that, courts would look pretty skeptical.

There are lots of proponents of net neutrality that simply want the services to be regulated as telecom services as a policy matter.  They see the common carriage model as being appropriate. But I don’t believe the FCC could interpret the Communications Act that way. So to change that Congress would have to make the decision.

The FCC saying they’ll do something doesn’t mean net neutrality regulations are imminent. The routes currently available to them in the absence of statutory authority are pretty limited.

(Waltzman represents broadband service providers.)

Charles Zielinski, counsel at Bryan Cave (Former FCC attorney):

It seems to me the first thing the FCC is going to do is try to see if they can work with the jurisdiction they have under the statute in a way that will allow them to go where they want to go on broadband.

They proceed with this theory of “ancillary jurisdiction” on broadband. They’re going to look at their options internally. That’s the easiest road for them in the sense that it’s under their control. Going to the Supreme Court doesn’t mean they will win the case. Even going to Congress at this point–Congress has a pretty full plate at this point.

The problem for them with this issue is that several years ago they went through a proceeding and determined broadband was an information service. In doing that, they confined themselves to a small part of that statute that means they can only use ancillary jurisdiction. And that’s pretty confining.

If they decide what they want to do is to redefine this whole area, then you’re essentially saying that eight years ago, that decision was wrong. That’s quite a high hill to climb.

Does the decision affect the broadband plan? There are large aspects of the plan that are tied to government support and other avenues that would make it feasible to get broadband out to rural areas. Part of the plan has to do with getting more radio spectrum allocated for wireless broadband. And that really has nothing to do with this decision. There seem to be large parts of the plan that are not affected at all by this decision.

In terms of the open internet proceeding, they might put out a supplemental notice raising other issues that they want people to comment on, or they could put out a different approach they want people to comment on.

The fact that they’ve suspended the reply comment period is some indication that this is a vehicle they can use to address issues raised by the court decision.

(Zielinski does not have any clients related to the open internet proceeding)