Will courts cut down Net Neutrality in its tracks?

GitHub's Chief Legal Officer discusses how the FCC's new net neutrality rules will shape the Internet economy and how Congress could intervene if the law gets stuck down.

In the past month, two things became certain with regard to net neutrality: The Federal Communications Commission was going to protect the open Internet by invoking privileges under Title II of the Communications Act and big telecom companies were going to take the rules to court.

Thursday served more as a net neutrality bullet point than an end point. How this plays out in the courts and the greater tech space will take months to figure out. We talked with Julio Avalos, GitHub’s chief legal officer, to see what this means for innovation, what the courts may or may not decide, and if Congress can do anything to change the current net neutrality landscape.


FedScoop: So we can say with a high degree of certainty that telecom companies are going to go to court over the new net neutrality rules. What hurdles or speed bumps will we see moving forward?


Julio Avalos: The most obvious speed bumps will be constitutional objections and litigation. I think that the FCC, from a legal standpoint, has been put in a tough corner. Historically, Congress has acted to change the rules around common carriers as technologies develop. Whether it’s under Title II with telecom companies or railway companies or Title VI when cable started coming into vogue in the ’60s, there really hasn’t been a commensurate action on the part of Congress to capture broadband Internet that has exploded over the last 15 to 20 years. The strongest possible argument the FCC has under Title II is broad enough to capture broadband, but I also think from a legal tenability standpoint, it would be on stronger footing if Congress could have legislated to account for the Internet.

FS: How will this affect innovation in the short- and long-term?

JA: There was sense of unease with respect to what was going to happen, and any kind of clear, unambiguous position by the FCC is a step in the right direction. Notwithstanding the legal objection, I think companies that are interested in entering data-rich, data-intensive spaces — audio, video, streaming, etc. — can maybe move forward with a little bit of clarity.

If the courts and the FCC are unable to come to some agreement, eventually it will begin to have an impact on innovation to the extent that startups are aware of these issues. If they are trying to move into these data-intensive technologies, then it would start to have a negative impact. Anything that happens from here on out should be done mindfully and done with this idea that a group of developers that have a good idea for product and are unsure whether to launch it because of any instability that’s happening in the courts, that’s bad for business, that’s bad for people and that’s bad for the economy.

FS: The opposition says these new rules regulate 21st century products under antiquated laws. Does that hold any weight? Do we need a law specifically for broadband?


JA: If you look at Title II and the way that the FCC has been reading Title II, I think it is broad enough to capture future technologies. Like anything else that legal-related, we always look at precedent and court opinions that were law 100 or 200 years ago that’s still good law today. You can’t just say, “This is an opinion that came out 100 years ago, somehow it’s inapplicable.” The reasoning either applies or it doesn’t. The basic reasoning and justification behind Title II is completely in sync and appropriately applied to looking at broadband technology as common carriers. Now, could it be cleaner? I think if Congress created a new title for broadband, I think certainly. That doesn’t seem to be a possibility. I think [Title II] is strong enough.

The fact that we have gone to Title II, the system has worked for telecom companies. AT&T and Ma Bell did okay. This idea that somehow an industry is going to have a modicum score of regulation and it’s going to have some disastrous impact on that business, I think that history teaches the opposite. The real change to the status quo would have been to adopt this fast lane, tiered hierarchy, pay-to-play situation that would ultimately have spread out industry into a strange place and would’ve had unintended consequences for future generations.

FS: What if this gets overturned again? Is congressional action the only path forward?

JA: If this gets overturned in the courts, everyone is going to back to business as usual, and the FCC will try to craft new rules, and it will continue on and on. Whether or not congressional intervention is the only real next step, I think it’s logical. As a community, we’ve primarily been focusing on Title II, and lobbying Congress or calling your local senator and trying to get some additional title added for broadband, that conversation hasn’t really happened. I think there is untapped territory to start focusing on this as a ballot issue and something that voters, at least in areas where they rely on e-commerce, should be looking to Congress for in the future. That would be a move in the right direction

FS: So this issue, regardless of court cases, isn’t going to simmer down.


JA: I still believe we need to think about the Internet and where we’re at as the dawn of this age. We’ve only been working with these issues for the past 15 to 20 years. We should proceed with caution before making changes that could impact the Internet on a structural, long-term level. To me, Title II is a somewhat conservative move, which is using a playbook that worked in the early part of the 20th century, worked in the mid-part of the 20th century for cable. So let’s apply this to broadband instead of using something that’s completely new and that we can’t really predict the impact of.

This transcript was edited for clarity and conciseness.

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