Net Neutrality Court Ruling May Be Linchpin for Legislation

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By Lydia Beyoud

Dec. 3 — Top House and Senate telecommunications aides voiced continued interest in crafting bipartisan net neutrality legislation to replace the controversial rules the FCC approved earlier this year.

The aides spoke at a Practicing Law Institute/Federal Communications Bar Association telecom policy conference on Dec. 3, a day before the U.S. Court of Appeals for the District of Columbia Circuit hears oral argument in a challenge to the rules by Internet service providers (United States Telecom Assoc. v. FCC, D.C. Cir., 15-1063, oral argument scheduled 12/4/15). Either way, the court's decision in the case promises to toss the whole issue back to Congress.

Republican staffers David Redl, chief counsel of the House Energy and Commerce Committee, and David Quinalty, policy director of the Senate Commerce, Science and Transportation Committee, criticized the rules, which they say create an atmosphere of regulatory uncertainty for broadband providers.

Quinalty said that federal telecommunications law hasn't kept up with technological changes. “The future of these rules is unclear, and we're in this exact posture because the Act hasn't been updated in 20 years to reflect the realities of the broadband Internet marketplace,” he said.

The situation is pushing Senate Commerce Chairman John Thune (R-S.D.) to look at legislation that would provide greater certainty, Quinalty said.

Democratic Senate Commerce senior counsel John Branscome said the panel's ranking member, Sen. Bill Nelson (D-Fla.), hoped a possible bipartisan “Title X” legislation would “take what the FCC has done and bring certainty that only legislation could bring to that.”

An approach that protects consumers, doesn't undermine the FCC and preserves a flexible, forward-looking authority to respond to market changes in the future is critical to Nelson, Branscome said.

Branscome said while he is optimistic about the legislative effort, “we obviously will be watching the court, too.”

Democratic House Energy and Commerce chief counsel David Goldman said a court decision to uphold the FCC's Open Internet rules would be a great result, but that the committee's ranking member, Rep. Frank Pallone (D-N.J.) remains open to legislation.

Political considerations in the House, however, are currently pushing lawmakers to wait for the court's decision before determining whether to move forward on legislation, he said.

Industry Predictions

At a separate conference panel, executives for Cox Communications Inc. and CenturyLink Inc. declined to speculate about how the court is likely to rule. CenturyLink is one of the appellants in the case.

Corie Wright, director of global policy for Netflix Inc., which has weighed in on the case on behalf of the FCC, said she predicted a win for agency.

Jennifer Schneider, vice president of legislative affairs for Frontier Communications Corp., suggested the court's decision would be appealed to the U.S. Supreme Court regardless of the outcome.

Wright predicted the high court would be more likely to hear the case if the FCC loses at the D.C. Circuit.

However, if the order is upheld by the D.C. Circuit, ISPs may face more difficulty in convincing the court to hear the case, unless the judges decide to take it up as a “cool” issue, she said.

To contact the reporter on this story: Lydia Beyoud in Washington at

To contact the editor responsible for this story: Keith Perine in Washington at