By Sara Witman
Gordon, Feinblatt, Rothman, Hoffberger & Hollander
This year, I finally followed the latter half of that recommendation, and I wish I had listened to it earlier; the program I took a gamble on was the most interesting and informative one I attended this year.
The Monday morning session, “Can the FCC Regulate the Internet?,” featured two panelists: Dan Brenner, a partner at Hogan Lovells US LLP and adjunct professor at Georgetown Law School, and Markham Erickson, a founding partner at Holch & Erickson LLP and lead counsel to the Open Internet Coalition. Brenner and Erickson described the current legal situation of “network neutrality” in the United States. In essence, “network neutrality” would prevent Internet service providers or the government from restricting content or access to consumers. The speakers offered different viewpoints on how the issue may be (and possibly should be) resolved. Ryan Harrington, a reference librarian at Yale Law School, introduced the speakers, provided a background on the issues, and asked some first-class questions.
Basically, if I understand this correctly, the FCC got involved with the management of Comcast a few years ago. Comcast was discriminating against customers who were using BitTorrent, a service that uses a great deal of bandwidth. In April 2010, the D.C. Circuit Court of Appeals found in favor of Comcast, and specifically that there was no statutory authority for the FCC to deal with “network management” on the Internet (see Comcast Corp. v. F.C.C., 600 F.3d 642).
Then, in December of last year, the FCC issued network neutrality rules. These rules cover three areas: the first states that a company must be transparent; the second prohibits blocking websites and applications such as Skype; the third prohibits discrimination.
The problem? The FCC rules are based on the same statutory authority that the D.C. Circuit said was insufficient. The rules have still not been published in the Federal Register; once they are, the lawsuits are coming right behind them, given the D.C. Circuit ruling.
Both speakers noted that, interestingly, Comcast had resolved its violation before the FCC decided to “take out the sledgehammer and iron maiden,” as Brenner eloquently put it, and pursue its case.
The speakers took very different stances on the FCC/network neutrality situation. Erickson works for Internet companies that provide content and want as little restriction as possible from consumers to that content. Brenner, on the other hand, thought that, in general, the FCC rules were a “solution in need of a problem,” since only two complaints have been filed on network neutrality and recent studies have shown that customers have been getting advertised Internet speeds. That said, Brenner stated that he does think that the general idea of network neutrality is important and that a company such as Comcast should not be blocking content based on what that content is or says.
The rules do not prohibit usage-based pricing. Erickson, who has represented Netflix, said that Netflix has worried publicly about this since they believe that usage-based pricing can be used against them in an anti-competitive way. For example, Comcast might charge more for heavy Internet users to ensure that customers won’t substitute Netflix for Comcast content.
Legislation could solve some problems surrounding network neutrality. However, Brenner points out that he doesn’t think “this Congress could pass an intelligent Internet law.” “It’s just not happening,” he said. “When you do get something, it’s about ordering the Commission to lower the sound of TV commercials. That’s what they’re able to pass.” Erickson agreed, “It’s really become so dysfunctional.” The House has already voted to use the Congressional Review Act to overturn the net neutrality rules.
So where will this issue go next? Apparently, no one really knows. Since the rules haven’t been published, they can’t be challenged in court yet. Will the D.C. Circuit’s opinion be overturned, or will the case be tried in a different jurisdiction creating a split that would be decided by the Supreme Court? Is this a completely unregulated field? How much authority does the FCC have over Internet service providers?
Thanks to this fascinating program, I will be paying much closer attention to these questions and how they are answered in the coming months and years.