[opendtv] In Net Neutrality Discussion, Lawsuits Loom Large - NYTimes.com
- From: Craig Birkmaier <craig@xxxxxxxxxxxxx>
- To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
- Date: Thu, 9 Oct 2014 10:43:22 -0400
http://bits.blogs.nytimes.com/2014/10/07/in-net-neutrality-discussion-lawsuits-loom-large/
In Net Neutrality Discussion, Lawsuits Loom Large
After discussion and debate at six Federal Communications Commission
roundtables stretching over 24 hours, a consensus has finally emerged on net
neutrality: Whatever rules the F.C.C. adopts, someone will take it to court.
That was the judgment on Tuesday of the final two panels in the commission’s
effort to examine the economic, technological and legal aspects of its net
neutrality authority.
“There will be blood,” said Tim Wu, a Columbia University law professor who
coined the term network neutrality in a 2003 academic paper. Which is to say,
he added, “there will be litigation.”
Others concurred. “The chance is pretty slim that litigation will be avoided,”
said Pantelis Michalopoulos, a partner at Steptoe & Johnson who has worked on
net neutrality proposals for AOL.
Gus Hurwitz, assistant professor at the Nebraska College of Law, agreed,
saying, “Litigation is probably inevitable.”
What the panelists did not agree on was the best way for the F.C.C. to
structure its rules for net neutrality, the concept that all Internet traffic
should be treated equally, with no type of traffic being favored over another
as it makes its way from a provider to a consumer.
Mr. Wu, for example, firmly held that the best way for the F.C.C. to ensure an
open Internet was for it to invoke its full authority under Title II of the
Communications Act.
To do so, the F.C.C. would have to reclassify Internet service as a
telecommunications service, a change from its current status as a Title I
information service. The difference between the two is that the commission has
more authority to regulate under Title II, which also covers utilitylike
services, like traditional telephone service.
To some, that would cause big problems.
“Title II would be a bonanza for attorneys,” said Thomas J. Navin, a partner at
Wiley Rein. “But not for innovators.”
Mr. Navin favored drawing up net neutrality rules based on Section 706 of the
Telecommunications Act of 1996. That is the part of the law that a federal
appeals court cited in January, when it struck down the previous rules, as the
likely source of F.C.C. authority.
Nuala O’Connor, president and chief executive of the Center for Democracy &
Technology, was one of several participants who favored a hybrid approach,
using elements of both Title II and Section 706 to outlaw blocking of and
discrimination against web applications by Internet service providers.
But focusing on whether or not a given approach is more likely to attract
litigation “is not the way to make a rule,” Ms. O’Connor said. “We should look
at the principles we are concerned about and act.”
Mark Cooper, director of research for the Consumer Federation of America, who
also favors a hybrid approach to net neutrality rules, agreed.
“Nobody should make a decision based on whether or not there will be
litigation,” he said. “Because there will be litigation.”
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