Net Neutrality can’t be left to the courts

On June 12, the FCC’s Open Internet Order (a.k.a. Net Neutrality) will go into effect. Or not. Before then, the U.S. Court of Appeals for the District of Columbia could issue a stay on the regulations effectively putting a halt to the regulatory process until a group of lawsuits is adjudicated.

For some proponents of Net Neutrality, February 26 was victory day. The FCC ruled that the Internet should be regulated under Title II of the Communications Act of 1934. The commission’s vote was seen by many as the only way to level the playing field to prohibit fast lanes, blocking and throttling.

{mosads}But here we are less than six months later, and already there is a risk that the promise of Net Neutrality could be delayed, not because of the tenets of Net Neutrality, but because of the path taken to create those rules using antiquated regulations called “Title II.” While there’s nearly universal agreement on the basic principles of Net Neutrality, there’s a wide range of opinions about the potential consequences of Title II.

This is why we need congressional action to protect the Internet instead of relying on the court system. This is especially important as this is now the third time the FCC has been in front of the courts, and the FCC has yet to win. Congress should exercise its telecommunications leadership role to enact legislation that affirmatively, and permanently, enshrines the principles of Net Neutrality.

As my colleagues at NERA Economic Consulting have written before, the FCC’s order is littered with the phrase “case-by-case.” It appears 59 times as in, the “no-unreasonable interference/disadvantage standard will operate on a case-by-case basis.” That’s red meat for lawyers looking to litigate the regulations or companies looking to use regulatory arbitrage to gain an advantage on a competitor.

Even if no stay is granted and the rules go into effect later this month, this won’t be the last legal threat to Net Neutrality. Well-funded opponents will continue to look for chinks in the regulations’ armor, and, if they find one, the whole thing could unravel.

That creates a precarious position for any company that relies on the Internet or plans to rely on the Internet in the future (yes, almost every company in America). If you don’t know that the regulations are stable, and if you don’t know the business rules of the road, how can you plan for the future? Given the vast uncertainty of how the FCC might, or might not, implement Internet rules, growth and investment plans for startups and ISPs alike are up in the air. Remember those 59 instances of ‘case-by-case’?

 That’s not exactly permanent and confidence-building when billions of dollars need to be invested to continue building the new economy and bring high-speed Internet to all Americans! And, depending on what the court ultimately decides on the basis of the FCC’s recent Net Neutrality rules, these business plans could be upended if one of these legal cases succeeds, leading to even further uncertainty in the market.

Then there’s the issue of the FCC itself. The Commission chairman is a political appointee. That means there will likely be a new chairman following the 2016 election. If a Republican is elected in 2016, he or she might decide not to enforce the rules put into place under President Obama and FCC Chairman Tom Wheeler, leading to a game of musical chairs every four or eight years into, well, perpetuity.

Between the courts and the FCC, the environment for the Internet and the principles of Net Neutrality are far from stable. For the technology community, this is an unacceptable reality. In order to have real Net Neutrality — where nobody hangs out in the slow lanes — we need congressional action. Congress should put aside its partisan politics and settle the Net Neutrality debate, once and for all. If not, the next five years will be a mess.

Montgomery is the executive director of CALinnovates.