Hearing Witnesses Warn FCC Net Neutrality Initiative Doomed to Failure

NEWS ANALYSIS: Congressional hearing witnesses warn that the FCC is about to vote on network neutrality rules that are certain to be gridlocked by years of litigation.

There seems to be an assumption making the rounds here in Washington that the Federal Communications Commission's vote on network neutrality, scheduled for Feb. 26, will end the debate on the issue.

The notion is that, once the FCC adopts and then starts enforcing rules that put the Internet under Title II of the Communications Act, national policy will be decided on the issue for good. Nothing could be father from the truth.

Actually, the real fight will begin as soon as the FCC votes that the Internet should be regulated under Title II. ISPs that don't want the regulation will file lawsuits that prompt one or more judges to impose legal stays that prevent the commission from enforcing its new rules.

What eventually happens to the FCC rules is anyone's guess. But in the past, the courts have not looked kindly on the FCC's efforts to regulate the Internet.

In Congress, meanwhile, there is action on another approach to protecting Internet users from the ravages—real or perceived—of carrier greed. Hearings in the House Energy and Commerce Committee the day before the FCC vote focused on the risks of simply allowing the FCC to proceed with its plans. The top concern is that, if the FCC Title II enforcement effort gets tied up in the federal courts for years, there may be no net neutrality rules in force at all.

"I am concerned that, either through successful court challenges or through actions of a future FCC with a different partisan majority than the current FCC, all network neutrality protections may be lost," said former Congressman Rick Boucher (R-VA) in his Congressional testimony.

Boucher, who is honorary chairman of the Internet Innovation Alliance, said that an FCC vote to apply Title II regulations on the Internet could result in years of uncertainty and eventually the loss of any form of net neutrality.

"A court decision will not be made until well into the next presidential administration," Boucher said. "If a Republican wins the 2016 presidential election, the new administration would be unlikely to support a writ of certiorari to the U.S. Supreme Court if the rules are struck down by a U.S. Court of Appeals. It would be unlikely that in such an event the FCC in a Republican administration would initiate a new network neutrality proceeding. In fact, it is probable that an FCC with a Republican majority would, as an early order of business, undertake a reversal of the reclassification order" that will likely be approved by an FCC vote on Feb. 26.

Boucher pointed out that draft legislation already being circulated by Republicans in Congress embodied the protections that Democrats have been seeking for years.

Other witnesses predicted a dim future for the FCC's actions because it failed to follow the federal court recommendations in a 2014 Verizon case that tossed out the FCC's previous attempt to regulate net neutrality.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...