Net Neutrality: Crafting a Winning Legal Strategy

In the wake of the Federal Communications Commission (FCC) abdicating all regulatory oversight of internet service (1), various state Attorneys General have indicated that they will take legal action to protect the net neutrality rules the FCC is determined to eliminate. A question that arises (not “begged”) is exactly what legal basis they may have that could lead to the courts telling the FCC they must fulfill their regulatory role.

I recently met Dr. Kendall Koning, who is also a juris doctor who has published specifically on the legal grounds for FCC regulation of internet service providers. It seems to me that this publication is a significant resource that should be brought to the attention of the state Attorneys General. It covers in detail historical regulation relevant to the reclassification of internet service as a telecommunications resource. While there is a lot of complexity to the internet as we see it, Dr. Koning demonstrates that this complexity is premised upon use of a single abstract layer:

The genius of the IP, and the reason for its success, is that it enforces standardization only at a single, abstract network layer. This allows considerable flexibility in the lower transport layers and provides a consistent and transparent interface to higher application layers. Thus, an IP network can be built using any physical layer technology so long as that technology can accurately deliver IP packets to the next switch in the network. The advantage of this approach is that it allows the creation of a large, interconnected network using existing networks as transport. This flexibility greatly reduced adoption costs, which was crucial to initial adoption.

Because everything else is built out of this, and what consumers get as internet service is precisely the access to that basic network layer, it is inconsistent and absurd to treat ISPs as an “information service” rather than a “telecommunications service”.

If you know how to contact someone in the legal offices of one of the state Attorneys General taking this fight to the courts, please pass on Dr. Koning’s paper or a link.

(1) FCC Chairman Ajit Pai offered up some minimal package of “regulations” that he said the FCC would apply in lieu of Title II classification of ISPs. This is pretty obviously hogwash, as existing legal precedent says that the FCC cannot regulate ISPs in the absence of Title II classification.