Legal Conflict Over Net Neutrality
Legal Conflict Over Net Neutrality

Legal battles have flared up over the issue of net neutrality in the past decade. In the US, the FCC is the independent government agency that oversees communications among the several states and with other countries. The FCC was responsible for the 2002 determination [PDF] that internet modem service, as a provider of information service, should be subject to a lesser degree of regulation than other common carrier telecommunication services. As a Congressional Research Service (CRS) Report indicated [PDF] following a 2005 investigation, several challenges to the ruling of the FCC reached the Supreme Court after the US Court of Appeals for the Ninth Circuit, having consolidated the complaints, rejected the FCC determination. In the 2005 case National Cable and Telecommunications Association v. Brand X Internet Services, the US Supreme Court followed the principle of Chevron deference and held that the FCC had acted within the bounds of its congressionally-granted power when it interpreted ambiguities in the Telecommunication Act of 1996.

Following this decision, the FCC outlined [PDF] new policies that aimed to “promote the open and interconnected nature of public internet.” The FCC envisioned consumers as being “entitled to competition among network providers, application and service providers, and content providers.” In 2009, the FCC’s Notice of Proposed Rulemaking invited comments regarding their proposal to prohibit interference with broadband Internet access based on market competition. Both consumer and telecommunications companies expressed concern over the future of the Internet. While consumers worried that a lack of regulation would disadvantage them, providers worried that regulation would limit their corporate functionality. Following complaints of Internet interference by consumers in 2008, the FCC ordered [PDF] Comcast to discontinue its “network management practices” that were impacting consumer use of peer-to-peer applications; the D.C. Circuit Court struck [PDF] down this order in 2010 citing the lack of any specific statutory authority granting the FCC the power to regulate under its ancillary jurisdictional capacity.

The FCC responded by issuing [PDF] Open Internet rules in late 2010. This mandate intended to “compel broadband providers to treat all Internet traffic the same regardless of source,” and was challenged [PDF] by Verizon in 2011, eventually rising to the DC Circuit Court in January 2014 where provisions of the FCC’s Open Internet rules were vacated.

In March 2015, USTelecom and Alamo Broadband filed the first legal challenge to the FCC’s new Open Internet rules. The plaintiffs argue that the FCC violated the Administrative Procedure Act (APA) through promulgating the rules, which purportedly show an abuse of discretion by the FCC.