The upcoming court decision on net neutrality gives the FCC an...

The upcoming court decision on net neutrality gives the FCC an opportunity to rethink how it handles Internet disputes, said speakers on an American Enterprise Institute conference call Monday. “The FCC will win regardless of the outcome,” said Roslyn Layton, a Ph.D. fellow at Aalborg University in Copenhagen. Obviously, the agency will win if U.S. Court of Appeals for the D.C. Circuit approves the rules, but “the FCC will win even bigger if they lose,” she said. FCC Chairman Tom Wheeler is versed in military history, and wants to “change the game” of a net neutrality fight that has been going on for more than a decade, Layton said. If the FCC gets decision not in the agency’s favor, it gives the commission a “clean slate” and opportunity to do many things, she said: It could come up with a “more holistic” idea of open Internet that applies to all the players, including back end. Or “net neutrality could be rebooted with more teeth,” in which those making a net neutrality claim would need to prove market power abuse, or that consumers are actually being harmed by a new practice, she said. The net neutrality rules are “not particularly toxic in their own right, but there’s a big slippery slope problem,” said Richard Bennett, visiting AEI scholar. The agency used Section 706 of the Telecom Act to justify the regulations, which is an example of the FCC looking for a way to define its own jurisdiction, he said. “If the agency is free to define its own jurisdiction, then the wishes of Congress no longer matter in the day-to-day operation of the FCC.” For instance, if the agency decided that all broadband plans should have a minimum speed of 20 Mbps, “then it could just enact that … based on 706 jurisdiction,” he said. Based on remarks of Wheeler over the past month, “I don’t think this commission is looking to vastly expand its authority,” said Jeffrey Eisenach, director of AEI’s Center for Internet, Communications, and Technology Policy. Wheeler is taking what appears to be a “very sensible approach” to net neutrality disputes, Eisenach said. But if the D.C. Circuit upholds the authority that the FCC asserts in defending the net neutrality order, “the potential would be there over time” for great regulatory expansion to occur, he said.