By Barbara van Schewick and Alec Schierenbeck.
The FCC is currently considering adopting network neutrality rules based on a hybrid proposal that is based on the same rationale as Mozilla’s proposal and just as likely to be struck down in court. The analysis in the paper applies to that proposal as well.
Mozilla has suggested that the FCC should classify a newly defined service, which it calls “remote edge provider delivery service,” as a telecommunications service. This service, as defined by Mozilla, is offered by broadband Internet access providers to providers of Internet applications, content or services (“edge providers”) and encompasses the transport of an individual edge provider’s data across the ISP’s access network to and from all of an ISP’s subscribers. According to Mozilla, this classification would allow the FCC to adopt rules banning blocking, discrimination, and access fees under Title II of the Communications Act.
Unfortunately, Mozilla’s proposal does not grant the FCC the authority to adopt such rules. Any attempt to nevertheless adopt such rules under Mozilla’s approach is unlikely to survive judicial scrutiny. If the FCC pursues the Mozilla proposal—rather than the Title II reclassification preferred by nearly all network neutrality advocates—the FCC is likely to lose in court a third time.
First, Mozilla’s proposal would not allow the FCC to adopt rules banning blocking and discrimination against edge providers that, like most edge providers, do not pay a fee to their users’ ISPs.
Second, Mozilla’s proposal would allow the FCC to require ISPs to charge just and reasonable fees to edge providers in return for preferential treatment such as paid prioritization or zero-rating, but it would most likely not allow the FCC to ban access fees altogether.
The legal obstacles facing Mozilla’s proposal will equally impede other “sender-side” proposals (such as the one by Tim Wu and Tejas Narechania) that rely on classifying the relationship between access providers and edge providers.
Because it will neither preserve the open Internet nor survive judicial scrutiny, the FCC should not adopt Mozilla’s proposal.