Legal Perspective on His Return – Minnesota Lawyer

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The Federal Communications Commission’s recent decision to reinstate net neutrality rules marks a pivotal moment in the ongoing battle for an “open” Internet. The FCC’s vote to reinstate rules that prevent broadband providers from blocking or throttling internet traffic (or offering “high-speed connections”) is seen as a victory for small businesses (and consumers).

Net neutrality regulations, first implemented during the Obama administration, were intended to treat broadband as a utility-like service, similar to phones and water. This classification is key because it subjects broadband providers to stricter oversight, ensuring they cannot discriminate against certain data or create high-speed pay-to-play connections. These rules were repealed during the Trump administration and were seen at the time as a victory for internet service providers (ISPs), who could potentially charge higher rates to some customers.

The net neutrality debate has certainly sparked fierce political debate at the FCC, even though some polls show that about three-quarters of U.S. consumers support net neutrality. The FCC’s recent decision to restore net neutrality underscores its (current) belief that high-speed internet is the primary means of communication for many Americans, reinforcing the need for it to be fast, open, and fair.

From a legal perspective, the reclassification of broadband services has several important implications:

• Increased FCC Oversight – While the recent vote explicitly avoids rate regulation, ISPs remain concerned that it could pave the way for future rate regulation, particularly at the state level, since the order does not prevent states from setting their own rules.
• Corporate Transparency – Rules aim to protect consumers from unfair practices such as blocking or restricting content, thus ensuring a level playing field. However, these rules do not prohibit providers from throttling Internet services; Bandwidth throttling is acceptable as long as the ISP is transparent about its policies and the action is done without selectively targeting specific applications or websites. Providers must submit public disclosures to the FCC if they implement fast lanes or restrict any type of traffic. This transparency is intended to discourage ISPs from cherry-picking.
• Litigation and Legal Challenges – ISPs are expected to challenge the reinstated rules. The disputes will likely focus on the FCC’s authority to regulate broadband under the Communications Act and the adequacy of the rulemaking process.
• Entrepreneurial Opportunities – Net neutrality is seen as a benefit to smaller, startup companies. In theory, net neutrality allows these companies to better compete with larger corporations that have “deeper pockets” and who might otherwise pay for preferential internet access/speed.

While restoring net neutrality is seen by many as a significant step toward a more transparent and fair Internet access process, it also sets the stage for a complex legal process that could change the landscape of U.S. Internet governance. As noted above, challenges are expected from the court. Therefore, the sustainable future of net neutrality remains uncertain.

This article was produced by Jon FarnsworthAND Jacek Amaral technology and privacy attorneys in the Minneapolis office of Spencer Fane LLP. More information can be found at spencerfane.com.