Election 2016: Internet Policy to Stay in Spotlight

While the economy, immigration and national security have drawn much of the attention this election year, Internet policy will remain a hot issue up to the polls and beyond. First up, municipal broadband. The 6th Circuit heard oral arguments Thurs on whether the FCC can lawfully preempt parts of NC and TN laws that regulate how municipal broadband networks may operate. The Commission voted 9 months ago to preempt laws in the states that discourage municipal broadband deployment. Both states appealed. Those appeals were consolidated for review by the 6th Circuit. During a briefing Thurs, TechFreedom pres Berin Szoka, who was at the argument, said the 3-judge panel asked questions including implications of the FCC’s ruling on private companies and how states govern their subdivisions. The FCC, in its order, argued that section 706 of the Communications Act allows it to “preempt state laws that primarily serve to regulate competition in the broadband market.”

However, opponents of the order, including TechFreedom, said in an amicus brief that Congress never granted the FCC such sweeping power over the Internet, and Congress’ history of legislation suggests that it didn’t intend broad Internet regulation. As a result, Congress couldn’t have intended Section 706 to give the FCC broad authority to govern the Internet, the brief said. A ruling in the FCC’s favor might mean the states will take the case to the U.S. Supreme Court. Meanwhile, the future of FCC’s enhanced Open Internet Order is pending in the DC Circuit. “I think we’re going to find a decision coming out of a court in the next few weeks, and we’re confident of our authority in this matter,” FCC chmn Tom Wheeler said in an interview with NPR Wed. Another item on Wheeler’s agenda is broadband privacy. He’s expected to propose rules governing how ISPs collect and use consumer data during the agency’s Open Meeting on March 31. As more states announced primary election results, the Internet Innovation Alliance wants to make sure the next US President will consider policies that maintain an open Internet, promote investment and innovation in broadband. In a 4-page letter to presidential candidates Hillary Clinton, Ted Cruz, John Kasich, Bernie Sanders and Donald Trump, IIA, backed by companies including AT&T and Alcatel-Lucent (now part of Nokia), said the courts may strike down the FCC’s new net neutrality rules.

“The FCC had it right the first time in 2010 when it published reasonable rules necessary to preserve the Open Internet and ensure non-discrimination among network providers and access to information. Encourage Congress to codify those rules in statute law,” IIA said. It’s also time to update the 1996 Telecom Act to ensure “government does not slow down the pace of innovation.” Among other things, IIA urged the next President to continue efforts to make more spectrum available for mobile broadband and encourage cross-platform competition. Finally, President Obama’ s Supreme Court nominee Merrick Garland, currently the chief judge of DC Circuit, is no stranger to telecom/cable issues. DC Circuit has the primary jurisdiction over FCC-related cases. Garland has been with the DC Court for nearly two decades.