FCC Net Neutrality NPRM Designed to Combine Certainty, Flexibility, Sallet Says
The FCC net neutrality rulemaking and recent policies are designed to provide certainty on what the commission will allow, while leaving room for case-by-case flexibility, said General Counsel Jonathan Sallet at an FCBA Continuing Legal Education (CLE) program Monday. Such rules are required to allow the commission to regulate “in a time of rapid innovation,” he said. Along with the thinking behind recent FCC rules, the event included a rundown on FCC court cases of the past year, especially the Verizon v. FCC net neutrality case and the 10th U.S. Circuit Court of Appeals decision upholding the FCC 2011 USF/intercarrier compensation order.
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To create certainty, FCC Chairman Tom Wheeler’s net neutrality NPRM seeks comment on some behaviors by regulated companies that would be considered unreasonable, such as slowing traffic to a competitor, Sallet said. The proposed rules would also leave the commission flexibility by leaving room for case-by-case decisions on situations outside those defined as unreasonable, Sallet said. Flexibility is important in regulating innovative technology, because the pace of innovation can outstrip the slow pace of the commission, Sallet said. With rules that rely too heavily on case-by-case decisions, regulators are in danger of inconsistency, which can leave the regulated without a clear expectation of how rules will be applied, he said.
The Verizon decision that led to the FCC net neutrality NPRM left questions open along with those concerning Communications Act Section 706 authority that are being explored in the open Internet NPRM, said FCC Associate General Counsel Jake Lewis. The decision didn’t resolve what authority Section 706 gives to state commissions, something that could be explored later through litigation or legislation, Lewis said. “It answers questions, it raises questions,” Lewis said of the decision.
The 10th Circuit USF decision (CD May 27 p1) was a “big win” for the FCC, going the commission’s way because of a strong initial order, a confusing statute and an uncoordinated opposition, said FCC Deputy Associate General Counsel Richard Welch. The ambiguous language in the Communications Act meant challengers had a difficult time arguing that the original rules were clear, paving the way for the court to show the FCC “massive deference,” Welch said.
Opponents of the commission’s revamped USF rules submitted 13 briefs challenging the rules a multitude of ways, which blunted their arguments, Welch said. “Some serious issues got lost in the din.” The decision will likely lead to the demise of intrastate access charges, said Welch.
Two cases that could affect FCC rules are currently on appeal, the Office of General Counsel officials said. Minority Television Project v. FCC (CD Dec 3 p4) concerns advertising in public broadcasting, and Leyse v. Clear Channel Broadcasting concerns the Telephone Consumer Protection Act (CD June 24 p11). Both cases could be affected by “The Forrest Gump Principle” of judicial review, Welch said. “You never know what you're gonna get,” he said of judicial review. -- Monty Tayloe (mtayloe@warren-news.com)