Asked & Anwered: Gerald Tschura on Net Neutrality

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By Steve Thorpe
Legal News

The Federal Communications Commission (FCC) voted 3-2 on Dec. 14 to approve Republican Chairman Ajit Pai’s plan to scrap the rules requiring internet service providers (ISPs) to treat all web traffic equally. Almost immediately court challenges and lawsuits were announced by opponents of the changes. Professor Gerald Tschura of Western Michigan University-Cooley Law School is an expert in patent, trademark and copyright law. He was instrumental in helping to develop the Intellectual Property LL.M. program and now serves as its director. Tschura has written and lectured on IP law topics and has extensive experience in preparation and prosecution of applications for patents and trademarks before the United States Patent and Trademark Office.

Thorpe: Give us a quick summary of the implications of the change for customers.

Tschura: We don’t really know what the implications will be; we only know what consumer advocacy groups argue they could be. Moreover, we won’t know for quite some time as the issue winds its way through litigation, Congress or both. The biggest fear among advocacy groups is the potential that companies like Comcast or AT&T would be free to slow down or even block their customers’ access to some services or content providers. They could charge higher fees to content competitors for “prioritization” over other services; in essence not treating all Internet traffic equally. Some advocates also express concerns over the potential for new pricing/bundling models for things like access to streaming packages or social media as compared to basic web surfing or email service. We just don’t know what will happen, if anything.

Thorpe: New York Attorney General Eric Schneiderman announced almost immediately that he would lead a lawsuit with other state attorneys general to stop the FCC from ending the rules. What is the basis of these suits?

Tschura: Lawsuits will likely be filed once the FCC ruling is finalized by publication in the Federal Register, perhaps by mid-January. The gist of the lawsuits is expected to be that the agency failed to properly follow the Administrative Procedures Act. Essentially arguing that, in light of a significant number of alleged fake/fraudulent, repetitive and even bot generated public comment submissions, the agency failed to abide by its legal obligation under the Act to properly review and consider the public’s comments.  Another point expected to be raised will challenge the legal reasoning for the repeal, arguing the FCC ruling violates the APA in that its decision was arbitrary and capricious.

Thorpe: What do you anticipate that the FCC will offer as a defense against these actions?

Tschura: The FCC’s likely response is that it had adequately considered the substance of the comments submitted, not the quantity.  On that note, I expect the FCC will assert fraudulent comments submitted, were likely submitted on both sides of the issue negating any contention that fraudulent favorable comments played any significant role in the decision. In any event, the FCC will likely contend it is bound only to consider the public comment and not necessarily be dictated by them.  As for the argument that the repeal was arbitrary or capricious, agencies are generally accorded a substantial degree of discretion under their rule-making authority and any rationale behind the decision will likely withstand the challenge.

Thorpe: Sen. Edward Markey (D-Mass.) said that he and Rep. Anna Eshoo (D-Calif.) would file an amicus brief in support of any litigation on net neutrality. How might the roles of the courts and lawmakers interact on this issue?

Tschura: Congress may also play a big role in this ongoing debate. It has been suggested that several Democrats as well as some Republicans alike, in both houses, may force a vote on a bill(s) that would reinstate the FCC’s net neutrality rules, or at least some portion of them. Congress can overturn administrative agency actions by utilizing the Congressional Review Act. If successful, it will invalidate the repeal and, of course, prevent any similar repeal by the FCC in the future.

Thorpe: Can you look into your crystal ball for us and predict an eventual outcome of the legal battles?

Tschura: I am skeptical of any outcome in the litigation by the states (which will likely also be joined by various consumer and open Internet advocacy groups) favorable to the plaintiffs. The litigation does, however, keep the issue alive in the media and in the minds of consumers and legislators alike. As far as any successful Congressional action on overturning the FCC’s ruling, the matter may more political than legal. While it is suggested many Republican lawmakers also disagreed with the FCC’s repeal of net neutrality, it remains to be seen whether or not they will vote accordingly. Even if legislation is passed restoring net neutrality, the President may veto the bill, leaving it then to see if there can be enough votes to make the necessary 2/3 majority.

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