Statutory regulation of the telecommunications industry is outdated and unworkable in today’s increasingly tech-driven society.  The most recent legislation regarding the framework for telecommunications regulation, The Telecommunications Act of 1996, was passed nearly twenty years ago. The Telecommunications Act amended the Communications Act of 1934, which created the Federal Communications Commission (FCC) and authorized it to regulate the telecommunications industry. In the years since it was enacted, technology has advanced in ways that Congress did not anticipate. In a world full of tablets and smartphones, the Federal Communications Commission (FCC) has limited authority to regulate Internet providers. Nevertheless, in the fact of Congressional inaction, the FCC has promulgated regulations in an effort to create “net neutrality.”

In 2010, the FCC issued a rule in 2010 titled “Open Internet Order,” aimed at preventing providers from capitalizing on their broadband investments. The Order was a response to the fear that these providers could block certain content and sell special “fast lanes” to companies. This would create a lopsided Internet framework in which big investors could pay to make their content easier and faster to access than content provided by individuals or smaller organizations.  However, parts of the 2010 order were subsequently vacated in the 2014, DC Circuit Court of Appeals Case, Verizon vs. Federal Communications Commission. On February 26, 2015, the FCC revisited the issue once again and promulgated a new “Open Internet Order.” The regulation establishes bright line rules that prevent broadband providers from blocking access to legal content, impairing Internet traffic on the basis of content, and favoring Internet traffic in exchange for consideration of any kind. The FCC touts the new regulation as a mechanism to provide Americans with fast, fair, and open Internet access. Critics argue that it impermissibly expands the reach of the Communications Act and limits Internet freedom.

In light of the heated debate regarding net neutrality, it is important to look at the legal basis for the “Open Internet Order.” There will inevitably be several lawsuits challenging the order and it is likely that it, like its 2010 predecessor, will fail in court. In 2005, the Supreme Court ruled that Congress did not intend for the Internet to be treated as a public utility under the 1996 Telecommunications Act. At the time, the FCC agreed with this decision and conceded that it has limited regulatory power. Nevertheless, ten years later, The Open Internet Order blatantly regulates Internet providers. Even if the FCC is given deference in interpreting the statutory language of the Telecommunications Act of 1996, enforcing the order would clearly exceed the scope of power it delegates to the FCC. Therefore, it is up to the Congress, rather than the FCC, to deal with the issue of net neutrality.


—  Allison Laubach



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