U.S. Court Upholds FCC Net Neutrality Rules, but Appeals Are Certain
Such a challenge could mean the FCC gets sued by one or more of the parties in the case (or anyone else for that matter), thus embroiling the agency in a long chain of lawsuits. Then the biggest challenge for the FCC would be to keep trying to enforce its reclassification while fighting any court-ordered stays that emerge. It's fair to say whole Title II reclassification effort by the FCC is getting mired in a legal morass. The legal challenges will take at least another year to be resolved—if the courts move with great dispatch and if most of the challenges are dispensed with quickly. But if you've watched the interplay of federal agencies and the federal courts at all, then you know it's highly unlikely such speed and dispatch will ever happen. What's more likely to happen is that the FCC will descend into regulatory purgatory, where most Title II action becomes impossible as the appeals and lawsuits stack up. Whether this legal morass will have any effect on Internet services or users remains unclear. Some pundits predict investment in the Internet will stall because of the uncertainty. Others predict it won't. Christopher Yoo, professor of Law, Communication, Computer and Information Science at University of Pennsylvania, predicts problems.The sad fact is that none of this had to happen. While the FCC was contemplating what direction to take with net neutrality, there was a bipartisan bill working its way through the House of Representatives that would define the specific power the FCC has to regulate the Internet, and which would have defined what net neutrality means and doesn't mean. Work on that bill stopped when the reclassification was announced. Unfortunately, the lack of Congressional direction has simply ensured the agencies make up the rules as they go along. While the FCC might be exceeding its authority with the reclassification— which I personally think it is— the fact is something needs to be done to protect Internet users from exploitation by a near-monopoly service providers. Congress has failed to act and FCC has acted. But it may not be able to make its actions stick. Whatever form net neutrality will take is in abeyance for another year. But a year from now there will be a new presidential administration, a new Congress and perhaps a new FCC. At that point the battle over network neutrality will begin all over again.
"Today's court decision upholding the FCC's 2015 Open Internet Order will likely have a number of unfortunate consequences," Yoo suggested in an email. "Over the long run, the decision likely will preempt new services that deliver video or other types of content in innovative ways. Limiting Internet service providers' ability to manage their networks also threatens to exacerbate the digital divide."