Balancing Interests for an Open Internet: Verizon Challenges the FCC's Net Neutrality Rules

This July, Verizon Communications and MetroPCS Communications filed a brief in the U.S. Court of Appeals for the D.C. Circuit, arguing that the Federal Communications Commission (FCC) lacks the authority to enact net neutrality rules and that these neutrality rules are unconstitutional under the First and Fifth Amendments. Now, debate over the FCC's approach to net neutrality is not a recent development. In fact, even the predecessor to the net neutrality rules, the policy statement for net neutrality principles, was challenged and ultimately defeated in a case brought by Comcast. Still, Verizon's latest case and public debate may shed light on the liberties at stake with the net neutrality rules and how to best balance everyone's interests.

The Net Neutrality Principles and Comcast v. FCC

Before formalizing its official net neutrality rules, the FCC adopted net neutrality principles in a policy statement in 2005. In this policy statement, the FCC outlined four principles to "to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers":

1. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
2. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
4. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers. 

In 2007, Free Press and Public Knowledge filed a complaint with the FCC, having noticed that Comcast was interfering with subscribers' use of peer-to-peer networking applications. In response, using its authority under the Communications Act of 1934 § 4(i) (which authorizes the Commission to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions"), the FCC sanctioned Comcast for violating its net neutrality policy statement, improperly slowing traffic to BitTorrent. Comcast complied, then appealed this order in Comcast Corporation v. FCC, 600 F.3d 642 (D.C. Cir. 2010). In April 2010, the Court of Appeals for the D.C. Circuit held that the FCC did not have constitutional authority nor sufficient statutory authority to enforce its policy statement against Comcast by prohibiting its interfering with costumers' Internet use. The Court held that under American Library Association v. FCC, 406 F.3d 689 (D.C. Cir. 2005), the FCC would only have this authority if it were "reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities," and the FCC failed to prove this.

The Net Neutrality Rules

After much development and compromise, the net neutrality rules, intended to replace the principles, were finalized in the FCC's order for "Preserving the Open Internet Broadband Industry Practices" (25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192). The order was released in late 2010 (after passing by a 3-2 vote) and published officially in late 2011. Simplified, the order creates three rules in regards to net neutrality, sometimes distinguishing between broadband and wireless networks:

1. Internet service providers (ISPs), whether wired or wireless, must be transparent by releasing their network management procedures and performance characteristics.
2. ISPs are prohibited from blocking lawful content on the Internet. Fixed broadband network providers may not block any lawful content, services, applications, or devices. In addition to these, wireless providers may not block Web sites