Christopher Yoo Provides Analysis of “Net Neutrality” Ruling

By TAP Staff Blogger

Posted on January 24, 2014


A few days after the D.C. Circuit Court of Appeals struck down the Federal Communications Commission’s (FCC) Open Internet rules, the Congressional Internet Caucus Advisory Committee hosted a Congressional briefing to provide analysis of the decision. University of Pennsylvania law professor Christopher Yoo was among the panelists on the “D.C. Circuit Decision on FCC Open Internet Rules: Net Neutrality Win or Loss?" session.

The D.C. Circuit Court of Appeals ruling stated that the FCC does not have the authority to regulate how Internet service providers grant access to content. The Verizon v. FCC case focused on the commission’s Open Internet rules, often referred to as net neutrality, which prohibit Internet providers from blocking or prioritizing Web traffic. The D.C. Circuit Court did say the FCC has the authority to regulate the Internet industry.

Below are a few excerpts from Professor Yoo’s discussion points.

Did Net Neutrality Win or Lose?

The theme of this session is: was it a win, was it a loss? And I think the answer is, yes. I think everyone found something to like in the decision. And I think everybody found something to hate in the decision.

I think the FCC’s worst nightmare and Verizon’s real goal was to say the FCC had no authority whatsoever. And in that sense, the D.C. circuit agreed with the FCC; and yes, the FCC still will regulate the Internet.

Are the old rules that applied to the telephone network going to be applied to the Internet? And what the D.C. Circuit decision clearly, clearly says is, “no.” When you exercise the authority that the FCC has, you are not allowed to extend these old rules developed through the 1934 Act, for a different technological context to the Internet. And that sense, that’s the part that Verizon likes and the FCC hates.


How Is Europe Regulating the Internet?

Europe has … folded the Internet into the traditional rules governing the telephone network.

We see a certain amount of media cycles about how we’re behind Europe. ... If you go to Europe, they are actually very much in a panic about why they’re behind the U.S. Because right now if you look, their investment in networks is one half per capita of the U.S.; their 30-25 megabit coverage is one half what it is in the U.S.; their rural coverage is one-quarter of what it is in the U.S. And in fact what they’re saying is not just in the infrastructure, in the apps. Where is the Google, the Facebook of Europe? They’re actually concerned not just on the infrastructure side, but also the other side.

What, If Anything, Happens Next?

I think a lot of people agree that right now applying rules that were written in 1934 to a new technology that didn’t exist is probably a bad idea. How those words apply will be an accident because no one really had them in mind. And the rules we had draw a distinction between cable and telephone-based services.

Most consumers at this point don’t care which way they’re getting it, they just want the Internet.

I think there’s a real opportunity here, and I think there’s some reason for hope that this Congress, at a minimum, will take a few positives step down the line for promoting meaningful reform which I think everyone in the industry thinks probably is eventually going to happen. And frankly, needs to happen because the Internet didn’t exist in 1934.

The Congressional Internet Caucus has made a video and audio of the briefing available online. See the “D.C. Circuit Decision on FCC Open Internet Rules: Net Neutrality Win or Loss?" page for the audio; the video is available as a C-Span video.

Christopher Yoo is Professor of Law and Communication and Founding Director of the Center for Technology, Innovation, & Competition at the University of Pennsylvania. He has emerged as one of the nation’s leading authorities on law and technology. Professor Yoo’s research focuses on how economic theories of imperfect competition are transforming the regulation of the Internet and other forms of electronic communications. He has been a leading voice in the “network neutrality” debate that has dominated Internet policy over the past several years.