By Amir Nasr
December 3, 2015 at 5:31 pm ET
On Friday, the Federal Communications Commission will assert its authority to regulate the internet for the third time in court. If the judges don’t seem to buy the FCC’s argument, it could be a big break for Republicans who want update the Communications Act. Their plans to do so this year were upended with the publication of the FCC’s net neutrality rules.
The case, U.S. Telecom Association vs. FCC, pits broadband providers against the agency. A host of intervenors have filed amicus briefs on both sides.
The lead plaintiff, which represents small and medium-sized broadband providers, argues that the FCC overstepped its jurisdiction when it published regulations in March that treat internet service providers as common carriers. The FCC rule in question uses Title II of the 1996 Telecommunications Act to regulate the internet.
The agency went down a similar road a few years ago, and was slapped back by the courts. It’s entirely possible the same thing will happen this time around. In 2014, Verizon challenged the FCC’s 2010 net neutrality rules in the same court of appeals. In that case, the court ruled 2-1 that because the FCC previously regulated broadband providers under Title I of the Telecommunications Act of 1996, it could not regulate them as common carriers. This led the FCC, in its newest version, to adjust its classification of providers to common carriers.
People opposed to the rules argue the internet is an information service, and the FCC hasn’t done sufficient work to prove otherwise. Wheeler says Congress gave the FCC the power to update the rules in order to keep pace with technology. The net neutrality rule came with the strong and vocal backing of the White House.
Apart from the FCC, Republicans in Congress have been eyeing an update to telecommunications law for a few years now. The two chairmen of the Congressional Commerce Committees, Rep. Fred Upton (R-Mich.) and Sen. John Thune (R-S.D.), started the Republican-controlled 114th Congress with a mission to update the 1934 Communications Act for the internet age. When the FCC published its rules, it derailed the entire operation.
Thune and Upton co-wrote an op-ed in January (a few months before the FCC released its rules) detailing their opposition to regulating the internet using Title II of the Communications Act. They wrote that such a rule could lead to “billions of dollars in higher government fees and taxes,” and that it “could extend new regulations to areas like mobile broadband without recognizing the unique challenges that mobile carriers face.”
Days later, Thune introduced a bill he wrote with Upton that would have updated the law in a very different way. The bill would have not allowed the FCC or a state commission to use Title II or Section 706 of the 1996 Telecommunications Act to back regulatory authority.
Doug Brake, a telecommunications policy analyst with the Information Technology and Innovation Foundation, said that didn’t give Democrats enough to work with. Thune’s conservative bill, combined with progressives’ insistence on common carrier-type regulations, made any dealmaking was more or less impossible.
“Democrats wanted more jurisdiction than that,” Brake said of Thune’s bill. “I think part of the problem is people are stuck in kind of a prisoner’s dilemma with the Progressive Caucus and the administration going for the win on Title II. Republicans kind of want to do a deal, but I think they need to put more on the table first.”
The issue is controversial, but if the judges push back hard on the rules, it could allow lawmakers to swoop in and pick up where they left off. Their abandoned mission could be revitalized.
Amir Nasr previously worked at Morning Consult as a reporter covering tech.