Wickard for the Internet? Network Neutrality after Verizon v. FCC
53 Pages Posted: 19 Oct 2014 Last revised: 27 Jan 2015
Date Written: 2014
The D.C. Circuit’s January 2014 decision in Verizon v. FCC represented a major milestone in the debate over network neutrality that has dominated communications policy for the past decade. This article analyzes the implications of the D.C. Circuit’s ruling, beginning with a critique of the court’s ruling that section 706 of the Telecommunications Act of 1996 gave the Federal Communications Commission (FCC) the authority to mandate some form of network neutrality. Examination of the statute’s text, application of canons of construction such as ejusdem generis and noscitur a sociis, and a perusal of the statute’s legislative history all raise questions about the propriety of the court’s conclusion. Moreover, the precedents on ancillary jurisdiction and common carriage impose limits to the FCC’s section 706 jurisdiction, preventing the FCC from regulating content before or after it is in transit and likely barring the FCC from imposing a strict nondiscrimination mandate. A revised rule based on commercial reasonableness as initially proposed by the FCC could accomplish many of the goals of network neutrality without running afoul of these prohibitions.
Reclassification of broadband Internet access to bring it within the regulatory regime governing traditional telephone service (known as Title II) faces substantial statutory obstacles, would not prevent prioritization of services, and ignores the longstanding problems associated with common carriage regulation and forbearance. The legislative history of section 706 also suggests that the FCC has the authority to preempt the concurrent jurisdiction accorded to state regulatory authorities. Moreover, calls to extend network neutrality to interconnection between networks overlooks the fact that such arrangements are not universal and instead are based on some type of reciprocity and that requiring zero-price interconnection would ignore the important role played by prices and by bilateral negotiations. The article closes by examining five early examples of network neutrality disputes: MetroPCS/YouTube, AT&T/Apple FaceTime, Verizon/Google tethering apps, Verizon/Google Wallet, and the Amazon Kindle/zero-rating programs. These cases demonstrate the difficulties surrounding the implementation of network neutrality rules.
Keywords: Net neutrality, Open Internet, telecommunications service, information service, Title II reclassification, common carriage, canon of construction, public utility, ancillary jurisdiction, general purpose technologies (GPTs), commercially reasonable, Cellco Partnership v. FCC, forbearance, preemption
JEL Classification: D63, D78, H73, K23, L51, L86
Suggested Citation: Suggested Citation