By Brennen Johnson
Last month, the Federal Communications Commission published its new net neutrality rules in the Federal Register. In response to the new rules, there has been an onslaught of legal challenges brought by telecom companies to defeat the rules before they go into effect mid-June. Within several days of publication, seven companies filed suit against the FCC over the rules. Rather than attacking the substance of the rules outright, the companies are instead seeking to block procedural aspects of the rules. The companies challenge both the FCC’s reclassification of the internet as a “public utility” as well as the legal standards and mechanisms that would allow the FCC to enforce the new rules.
By classifying broadband internet as a public utility, the FCC gains broader regulatory powers over internet providers under Title II of the Communications Act of 1934. The reclassification addresses the FCC’s January 2014 failed attempt to enforce net neutrality. The FCC’s rules at that time were struck down in large part because broadband internet was not classified as a public utility, implying that the FCC could not regulate internet providers in the same broad manner as other utility providers. Speaking for the Court in that case, D.C. Circuit U.S. Court of Appeals Judge David Tatel wrote: “[g]iven that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such.” These broader powers significantly fortify the FCC’s position to protect its net neutrality rules from legal attack. However, if telecoms can successfully challenge the FCC’s reclassification of the internet as a public utility, then it seems a near certainty that the FCC’s current attempt at ensuring net neutrality will fail for the same reason it did in 2014. Continue reading
By Max Burke
This past Monday, President Obama formally addressed the ongoing dispute over whether the Internet should be “open” and “neutral.” In a written statement and an accompanying video, the President asked the Federal Communications Commission (FCC) to “ implement the strongest possible rules to protect net neutrality.”
In case you haven’t seen or read any technology-related news this past year, here’s a quick primer on what Neil Irwin of The New York Times described as “one of the most important policy disputes that will determine the future of the Internet.” Net neutrality, or open Internet, is the idea that Internet service providers (ISPs) “should treat all Internet traffic equally” and should not be able control what websites users can or can’t access. This is essentially the system we have been living under since the dawn of the Internet. But ISPs, including Comcast and Verizon, want to be able to manage some of that access by collecting fees from certain content providers (e.g. Netflix) “in exchange for special access to Internet users.” As Irwin noted, this type of paid prioritization is essentially the business model of cable television providers (many of whom are also ISPs). And like the “boom in content for cable television customers,” ISPs believe there would be a similar “explosion of creativity on the Internet” if they were able to prioritize websites and applications. Continue reading
Photo Credit: Blogworld.com
By Max Burke
The D.C. Circuit dealt a blow to copyright trolls last Tuesday when it vacated the district court’s order for discovery in AF Holdings v. Does. The case, which was filed about two years ago, lists over 1,000 “Doe” defendants who are suspected of downloading AF Holdings’ pornographic films without permission. In an attempt to identify the unknown defendants, AF Holdings motioned the district court to compel Internet service providers (ISPs) to turn over the defendants’ personal information. The court granted the motion.
The ISPs, which include Comcast and Verizon, appealed the court’s order, arguing that the court lacked personal jurisdiction over the defendants, the venue was improper, and the defendants could not properly be joined together. The ISPs were mainly concerned that the order would allow AF Holdings to evade normal judicial procedures and unfairly leverage the defendants. Specifically, they believed the information sought would be used “to compile a contact list for Plaintiff to demand ‘settlement’ payments (typically ranging from $2,000-$4,000) from each subscriber . . . before any defendant is named or served in the lawsuits.” Continue reading