Diminishing the Prospects of Further Net Neutrality Litigation

There has been a lot of speculation lately that, whatever the Federal Communications Commission decides about new Net Neutrality rules, the whole thing is headed for another round in court. That doesn’t have to be the case.

The FCC has the opportunity to create Net Neutrality rules that prevent any harmful “paid prioritization” practices that some fear, and to do so in a way that both ensures the rules are not overturned and makes further litigation a diminishing prospect. The key to whether there is further litigation is the statutory basis the FCC chooses as the foundation for its new rules. If, as the FCC proposed back in May and as the D.C. Circuit suggested in its decision nearly a year ago, the new rules are based on Section 706 of the Communications Act, then the possibility that a rule prohibiting paid prioritization will be overturned is essentially eliminated, and the chances that there will even be appeals of the rules are reduced considerably. Here’s why.