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Lyons on Net Neutrality in Communications Daily

2014 news archive

03/20/14

Newton, MA--BC Law professor Daniel Lyons spoke on Net Neutrality landmines at the Free State Foundation's annual telecom conference in Washington, DC. The conference was televised on C-SPAN. A video of Lyons' participation is available online:

http://www.c-span.org/video/?318351-3/telecommunications-priorities-academic-fcc-congressional-panel

Lyons was also quoted in Communications Daily.

Communications Act 'Serviceable' But Contains 'Land mines' on Net Neutrality, Panelists Say

SECTION: TODAY'S NEWS

LENGTH: 634 words

The Communications Act is "serviceable," Phil Verveer, senior counselor to FCC Chairman Tom Wheeler, told a Free State Foundation panel Tuesday. That's good news, he said, because updating the act is going to be a challenge. Law professors on the panel agreed that FCC action on net neutrality under Section 706 of the Communications Act carries a huge number of potential "land mines" for the agency to navigate.

It's a good thing the act is serviceable, "because history tells us it's not terribly easy to amend it, let alone replace it," Verveer said. "If we're thinking seriously about doing it in an environment of rapidly changing technology, rapidly evolving business models, rapidly changing consumer behaviors, we probably need something that is pretty simple and provides an awful lot of discretion for regulators. Because it will be very difficult to legislate on something that's very specific; it will have a very long life."

"We do go to great lengths to say 'update' and not 'rewrite,'" said House Commerce Committee Majority Chief Counsel David Redl. "We're not sure what the process is going to look like, and that's why we're doing a year's worth of hearings and white papers and stakeholder meetings, to figure out which pieces of the act we would like to retain, and which ones we would like to modify. The end result could be none and all of them, or anywhere in between, but we're trying not to prejudge what it should look like."

The current act carries "a lot of hidden restrictions and land mines that the FCC has to negotiate around" as Wheeler tries to implement new net neutrality rules, said professor Christopher Yoo of the University of Pennsylvania Law School. For instance, how might the agency deal with the potential of difference price classes by broadband ISPs, Yoo said: Such price classes are permitted under common carriage, and so it would be strange to read Section 706 to forbid something like that. "My guess is they're likely to punt all that down the stream" by adopting something that strongly resembles the data roaming rules upheld in Cellco Partnership, he said. Wheeler "is facing the choice of being the IP transition chairman, or the network neutrality chairman," Yoo said. "My sense is he is trying to do something responsive because of the political needs," said Yoo, while also trying to get net neutrality "off the center of his agenda, because his primary responsibilities lay elsewhere, in the incentive auctions and the IP transition."

"There's a huge number of potential land mines" that the FCC will have to negotiate around in setting new net neutrality rules, said Boston College Law School Professor Daniel Lyons. Wheeler's focus on competition might give the agency less of a focus on ex ante prohibitions and more of a focus on "a broad standard that we then learn the meat of on a case-by-case basis," Lyons said. That could "fill out what the legal norm is" and give the agency flexibility over time, he said.

Net neutrality is an "albatross" that Wheeler doesn't want weighing him down, said Justin Hurwitz, a professor at the University of Nebraska College of Law. The IP transition is a much more "meaty" area for Wheeler to focus on, Hurwitz said. He expects Wheeler's net neutrality approach will evolve in a way that provides some basic rules of the road to be "filled in" on a case-by-case basis. The upcoming net neutrality rulemaking needs to "provide some notice of what the legal framework for analysis is going to be," and what the "contours of the rules of the road will be" so the agency can avoid Administrative Procedure Act and fair notice challenges, he said. Ultimately, "the FCC will get substantial deference in determining the scope of its jurisdiction," Hurwitz said.

-- Matthew S. Schwartz, (mschwartz@warren-news.com)