FCC to Rewrite Net Neutrality Rules Following D.C. Circuit Ruling

It's been a long and strange road on the way to net neutrality, and the D.C. Circuit has been a key part of that journey.

As of Wednesday, the Federal Communications Commission (FCC) decided to drop any plans to appeal the D.C. Circuit's striking of the Commission's anti-blocking rules, opting instead to do a re-write, The Washington Post reported.

Can we expect the FCC to produce viable net neutrality guidelines this time around?

The Problem With the Old Net Neutrality Rules

The D.C. Circuit heard arguments on this FCC net neutrality case back in September 2013, with Verizon adamant that the then-current rules were beyond the FCC's scope of authority.

At heart, the rules seemed like a good thing, trying to prevent content-discrimination by broadband providers like the now-behemoth Comcast. However, both the wireless providers and the net neutrality supporters challenged these rules as poorly conceived -- especially when drawing a distinction between wireless and wired broadband providers.

Ultimately the D.C. Circuit made its decision based on an overstep in treating Internet service providers (ISPs) just like common carriers, despite the fact they've never been classified as such. But the Verizon Court gave the FCC an out: revise the rules to conform with the law.

According to the Post, FCC Chairman Tom Wheeler announced that the Commission would "accept that invitation" by proposing new rules for promoting net neutrality. A senior FCC official announced these updated rules "are expected to be complete by spring or summer."

Options for the New Rules

While it seems like a difficult task to rewrite the FCC's net neutrality guidelines to please all parties, there are certain major questions the rules need to answer:

• Are ISPs common carriers? Treating providers like Verizon or Comcast like a utility without classifying them as common carriers was the genesis of the recent suit, so this problem must be addressed.
• Are ISPs something new entirely? The answer to the common carrier question doesn't have to be "yes" in order to regulate. California's Public Utility Commission had a novel solution in creating a new category for ridesharing services like Sidecar and Lyft that didn't call them taxis yet still managed to regulate them.
• Is content discrimination legal under these rules? No net neutrality guidelines which answer "yes" to this inquiry will survive. If the Internet is the last bastion of egalitarianism -- which pray for us if it is -- then the FCC must keep ISPs from charging content-providers for access to faster connections.

Regardless of how the proposed rules emerge, they'll need to be approved by the votes of the FCC's three Democrats and two Republicans. According to The Wall Street Journal, this may mean treading very lightly with regard to reclassifying broadband.

Related Resources:

• F.C.C. to Try Again on 'Net Neutrality' (The New York Times)
• FCC's Net Neutrality Rules Struck Down by D.C. Circuit (FindLaw's Courtside)
• EPA's New Ozone Standards Upheld (FindLaw's D.C. Circuit Blog)
• 3 Must-Know Circuit Rules for New D.C. Appellate Attorneys (FindLaw's D.C. Circuit Blog)