By Ernest A. Canning on 2/27/2015, 6:05am PT  

On Thursday, by way of a 3-2 vote, the Federal Communications Commission (FCC) adopted 'Net Neutrality' regulations that embody the "bright-line" rules that had been proposed by President Barack Obama last November.

The new policy is unquestionably a victory for both the idea of Internet freedom, as well as for the unprecedented campaign waged by the public to advocate in favor of 'Net Neutrality' over the past several years. An outspoken public won the day, for a change, against very powerful interests. It was a victory that, particularly over previous years, seemed to be anything but assured.

Of course, as anticipated, the ruling drew harsh reactions from some Congressional Republicans as well as major Internet Service Providers (ISPs) which could otherwise profit from the imposition of tolls on the Internet. (See two video explainers at end of article). Those reactions included a prediction by AT&T and by the Telecommunications Association, an industry trade group, that the new rules would be overturned either by Congress or the courts.

While both litigation and a GOP challenge to the newly adopted 'Net Neutrality' rules are almost certain, neither legal nor Congressional challenges are likely to succeed. Here's why…

'Bright-line' rules

An FCC Fact Sheet reflects that Thursday's ruling amounts to an adoption of the "bright-line" rules for 'Net Neutrality' that the President described last November.

As we previously reported, the President’s "bright line" rules included:

*No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player --- not just those commercially affiliated with an ISP --- gets a fair shot at your business.

*No throttling. Nor should ISPs be able to intentionally slow down some content or speed up others --- through a process often called "throttling" --- based on the type of service or your ISP's preferences.

*Increased transparency. The connection between consumers and ISPs --- the so-called "last mile" --- is not the only place some sites might get special treatment. So, I am also asking the FCC to make full use of the transparency authorities the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet.

*No paid prioritization. Simply put: No service should be stuck in a "slow lane" because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet's growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect.

To ensure that these bright line rules are enforced, the FCC created, for itself, the "authority to hear complaints and take appropriate enforcement action…to address issues that may arise in the exchange of traffic between mass-market providers and edge providers."

The bright-line rules are not, as suggested by Verizon in its News Release, an abstract concern. Back in 2007, Comcast was caught red-handed when it deployed technology that would have crippled the services of file-sharing networks.

Likely to withstand legal challenge

In January 2014, the U.S. Circuit Court of Appeal in D.C., in Verizon Communications, Inc. v. Federal Communications Commission, struck down an "Open Internet Order" that had been adopted in 2010 by a sharply divided FCC.

The court struck down the Open Internet Order not because of substantive deficiencies in the concept of "net neutrality," but because the FCC had failed to first reverse regulations that a Republican-controlled FCC had adopted in 2002.

The issue entails the FCC's regulatory authority under the Telecommunications Act of 1996. As the Court of Appeal observed at the time, during the Clinton administration, the FCC "classified Digital Subscriber Line (DSL) services --- broadband Internet service furnished over telephone lines --- as 'telecommunications services'" within the meaning of the Act. That classification was critical to the FCC's authority to regulate broadband Internet service providers and keep them from charging more (or less) to access certain Internet websites.

However, in 2002, the George W. Bush appointees to the FCC reversed that classification. The FCC "determined that cable broadband providers...were...not telecommunication carriers" --- a reclassification that exempts broadband providers "from Title II" regulations that would otherwise allow the FCC to oversee Internet access in a way that is similar to a utility, like electricity.

In essence, since those 2002 classification remained in place, the FCC, by reason of its own rules, lacked the authority to impose its "net neutrality" regulations on entities that were "not telecommunications carriers" and therefore not subject to FCC regulation under Title II.

Acutely aware of that legal ruling, FCC Chairman Tom Wheeler, himself a former telecommunication lobbyist, rectified the regulatory authority issue.

As explained by the FCC Fact Sheet, Wheeler’s now-adopted proposal reclassified "broadband Internet service…as a telecommunications service" within both Title II of the Communications Act and Section 706 of the Telecommunications Act.

The FCC added, that "if a court finds that it is necessary to classify the service that broadband providers make available to 'edge providers,' it too is a Title II telecommunications service."

The FCC takes the position that "Title II’s 'just and reasonable' standard and the Verizon court’s finding that Section 706 authorizes the FCC to protect the 'virtuous circle' of network innovation and infrastructure development provide standards for the FCC to protect Internet openness against new tactics that would close the Internet."

Given the care taken by the FCC to overcome legal hurdles, it does not come as a surprise that Stanford University Law Professor Barbara van Schewick, a 'Net Neutrality' expert, "was optimistic" about the likelihood that the FCC's newly enacted rules would survive a legal challenge.

Legislation unlikely

While 'Net Neutrality' is opposed by the powerful telecommunications lobby and by their GOP allies, the truth of the matter, according to Senate Commerce Committee Chairman John Thune (R-SD), is that the GOP lacks the votes necessary to secure passage of a bill that would overturn the FCC’s new rules.

As The BRAD BLOG explained when covering the President’s prior announcement, ‘Net Neutrality’ not only pits Democrats against a small (if growing) caucus of far-right Republicans, but the powerful high tech sector of the economy against the powerful would-be gatekeepers or ISPs.

Yet, it was the American public which won, as the President mentioned in a letter penned shortly after the FCC handed down this momentous ruling. "More than 4 million wrote in to the FCC," Obama proclaimed, "overwhelmingly in support of a free and fair internet."

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This New York Times video provides an easy to follow explanation of 'Net Neutrality'...:

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And then there’s this second, much funnier video describing the interests of companies like AT&T in killing net neutrality (NOTE: The video below was originally published at The BRAD BLOG in 2007 and features Brad Friedman as the voice of then AT&T CEO Ed Whitacre.):

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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