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The Net Neutrality Reversal Order: Why the FCC Will Prevail

It is now out—all 539 pages entitled “Declaratory Ruling, Report and Order, and Order” (Reversal Order).

As someone who has dealt with this subject matter at a working level over the past 40+ years, it seems clear that the FCC will readily prevail here and the protagonists need to move on. (Admittedly that is wishful thinking given the appellate revenue to be made and press blather opportunities.) The document from a Federal Administrative Law perspective is very thorough and well-crafted.

  1. The Commission clearly has the jurisdiction and authority to act
  2. The actions being taken are amply justified and appropriate from a public interest perspective—certainly sufficient to meet the reasonableness test
  3. The NetNeutrality Order being reversed was an egregious, inappropriate exercise of Washington lobbying power that should never have occurred.

At the outset, it should be noted that the Reversal Order exudes its own political blather—kissing the internet vibrancy ring, extolling the virtues of the free market, and reciting the “internet freedom” incantation. Never mind that the present internet was nothing more than a U.S. version of Pouzin’s datagram invention that was funded with many billions of taxpayer dollars, controlled, hyped, and marketed for decades by the U.S. government to gain various perceived global strategic advantages that have largely proven illusory if not national security liabilities. A lot of companies, non-profits, and people also got rich in the process proffering the internet Kool-Aid. So the present Commission in the Order imbibed a different flavour of the same Washington internet Kool-Aid at the outset, but then proceeds to some key points on which it is highly likely to prevail.

The Commission “find[s] that reclassification as an information service best comports with the text and structure of the Act, Commission precedent, and our policy objective.” In other words, the expansion of Public Utility regulation to include internet broadband access service is ended. They also do that for everything that comes bundled with internet broadband access service—DNS, caching, etc. The previous nonsensical NetNeutrality Order required all kind of legal contortions to avoid sweeping everything under Title II in a regulatory shell game. The same basic deregulatory construct is also applied to mobile infrastructure. Well done.

The FCC Reversal Order also maintains or enhances network management practice transparency. It seems ludicrous for the Order to state that consumers will, therefore, make more intelligent decisions about access provider options, but then ultimately government agencies cannot hold the collective hands of consumers here.

All the mega data center providers of virtualized services and network architectures should breathe a sigh of collective relief and see the positive side of the Reversal Order. One could imagine at some point in the future that they could have been declared modern day Public Utilities and subject to tariff-based regulation. We can always hope that some future intelligent, functional version of the U.S. Congress finally ditches Title II and joins the rest of the world in adopting a unified construct for a Network Services Provider.

The one major area where the Reversal Order was seriously lacking is network/cybersecurity and infrastructure protection. Tossing the challenges over to the FTC and jokingly referring to “its extensive ... data security expertise” and the industry at large is no solution. That omission, however, is probably not going to get the Reversal Order reversed on appeal. It does, however, give the FCC an opportunity to begin getting serious about cybersecurity and infrastructure protection and working more closely with those at Fort Meade and elsewhere around the world who know something about the subject.

The real national security forcing function going forward will be the rapidly scaling, intractable challenges of Nation State extraterritorial orchestrations of virtual services and architectures. That is occurring quickly. Rational nations are not going to allow virtualized services and architectures to be orchestrated on encrypted links from another country without some substantial additions to existing arrangements of Public International Cybersecurity Law that have been around for the past 167 years. Sovereign nations still have the authority over communication networks and services within their jurisdiction, and they can require all virtual orchestrations be done from domestic data centers.

The Reversal Order was the easy part. Developing necessary public international cybersecurity and infrastructure protection law will not be so easy.

By Anthony Rutkowski, Principal, Netmagic Associates LLC

The author is a leader in many international cybersecurity bodies developing global standards and legal norms over many years.

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