TR Daily Panelists Debate Meaning, Effect, Aftermath of Court’s RIF Opinion
Monday, October 7, 2019

Panelists Debate Meaning, Effect, Aftermath of Court’s RIF Opinion

Participants in a Capitol Hill panel discussion today of last week’s decision by the U.S. Court of Appeals for the District of Columbia Circuit on challenges to the FCC’s 2016 restoring Internet freedom (RIF) order (TR Daily, Oct. 1) disagreed on how wide the court left the door open for state net neutrality actions, which side is most to blame for the “ping-ponging” of federal policy on the issue, and how significant the court’s remands of Lifeline, pole attachment, and public safety issues are.

Even where there appeared to be some agreement on the need for congressional action to resolve the long-running debate on how to regulate the provision of broadband Internet access service (BIAS), differences on the preferred provisions for such legislation were obvious.

Matthew Brill, a partner in the law firm of Latham and Watkins, said that the court’s decision “absolutely” does not give broadband providers the confidence they need for network investments, given the possibility that a future FCC could reverse course.

Kristine Hackman, vice president–policy and advocacy at USTelecom, said her organization hopes for “consensus” on a “modern” approach to net neutrality.

In response to the idea that legislation could codify something similar to the FCC’s 2015 open Internet order, which classified BIAS as a telecommunications service subject to common carrier regulation under Title II of the 1934 Communications Act, as amended, Mr. Brill said that the 2015 order’s forbearance on rate regulation was a “promise” that could be rescinded by the Commission and thus “didn’t give the industry comfort.”

Sarah Morris, director of New America’s Open Technology Institute, said, “So you would be OK with legislation similar to the 2015 order if Congress said no rate regulation?”

Mr. Brill said that industry also had an issue with the 2015 order’s broad general conduct standard.

In response to the idea that the Internet has flourished without Title II regulation, Ms. Morris said that the Internet has flourished because it operated on a nondiscrimination principle, adding that “if the ISPs [Internet service providers] hadn’t continually sued the FCC’s attempts [to establish a regulatory framework for BIAS], we wouldn’t be here today.”

Ferras Vinh, Internet policy manager at Mozilla, said that “ISPs have been on their best behavior” because of the ongoing threat of regulatory action, as the net neutrality issue remained a live policy debate over the years.

Ms. Morris said that as a result of the 2017 restoring Internet freedom (RIF) order upheld by the D.C. Circuit last month, “there is no venue [now] to bring concerns” about net neutrality violations, because the RIF order classified BIAS as a lightly regulated Title I information service.

“What about the FTC [Federal Trade Commission]?” Mr. Brill asked.

The FTC’s “scope is limited to anticompetitive practices,” Ms. Morris said, but Mr. Brill pointed to the FTC’s authority over unfair and deceptive business practices.

The FTC is barred from exercising its authority over unfair and deceptive business practices with respect to common carrier services, but the classification of BIAS as an information service by the 2017 FCC order eliminated that barrier to FTC oversight.

Mr. Vinh pointed out the FTC does not have rulemaking authority in this area, just enforcement authority after something has gone wrong.

Mr. Brill said, “But that’s what we’re talking about” with respect to Ms. Morris’s concern that there is no venue to bring complaints.

Mr. Brill suggested the court’s remands to the FCC—which were not accompanied by vacatur of the provisions in question—were relatively minor.

Ms. Morris said that “the remand is quite significant,” covering a failure by the FCC to account for the RIF order’s effects on public safety, broadband affordability (Lifeline), and broadband deployment (pole attachments).

She also said that the D.C. Circuit “went to great pains” to say that the FCC “just barely” qualified for deference under the “Chevron” test. —Lynn Stanton, [email protected]

MainStory: FederalNews Courts Congress NetNeutrality

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