Net Neutrality – What’s the Real Legal Deal?

The FCC voted for net neutrality today. And the way you read it in the papers, some are “for” net neutrality and some are “against” it. And there is going to be a court fight. And Congress didn’t vote, but it appears as though this is a new law being passed. And opponents are warning the internet will now be taxed because we did this. If you have even a passing knowledge of how our legal system works, you might say “huh?”

As per usual, the press screws up reporting on legal matters. In their pursuit of a hot story, and through laziness, and probably through quite a bit of ignorance, they gloss over important issues that explain what is really going on. Here is the real deal.

Nobody has passed any new laws. You would never know that to read the press accounts. Congress passes laws. The FCC does not pass laws. The FCC only implements regulations under legal authority Congress gave them already. So how can the FCC vote for net neutrality? Isn’t that like passing a new law?

Well, sort of. What the FCC has done is to determine that the internet is a “telecommunications service” instead of an “information service.” The FCC does have the power under a 1934 law to regulate a “telecommunications service.” That is how they regulate phone providers. The FCC has essentially decided that the internet is like a phone line. Now, they have the power to regulate it. And the regulation they have decided to impose is net neutrality. 

The court battles to come will be over whether or not the internet really is a “telecommunications service” as defined in the 1934 law. And yes, part of that argument will be that the internet didn’t exist in 1934 so how can the law made then possibly be used to regulate it. That is an interesting question, but it is also a different topic altogether.

So the fight is really over whether or not the FCC can regulate the internet. It is not technically a fight over net neutrality, at least in the legal sense. But in a practical sense it is. The parties who argue against the FCC will also just happen to be against net neutrality. That isn’t a coincidence. In a practical sense, this will be about net neutrality, because that is the end result of the fight.

An astute observer might ask, “why can’t Congress just pass a law dealing with this matter directly?” Good question. If they did that, there wouldn’t need to be court battles over 1934 laws applied to the internet. The real answer is that Congress cannot agree on this issue and cannot therefore pass a law about it. So they punt to the FCC, and the FCC “redefines” a word, and that makes new law that the whole country has to live with. Is this sort of stupid? Yes! But it is the system we have because our Congress cannot agree on almost anything. 

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