The net neutrality battle is far from over.
The FCC is still considering its options as it weighs arguments from both sides of the issue. Now, Verizon has made not-so-subtle threats to sway the FCC decision by promising not to sue over any pro-net neutrality decision as long as it doesn't involve reclassifying Internet service as a utility like traditional phone service. But, Verizon's litigious history could come back to bite it by forcing the FCC to do just that.
As the FCC decides how to answer the net neutrality question, it has several options. One of the most controversial involves reclassifying Internet service as a utility under Title II of the Communications Act. This option has some high profile supporters like President Barack Obama, but is opposed by Internet service providers like Verizon who think it will over-regulate the industry.
Those companies generally oppose net neutrality as a whole, too. They would like the ability to sell Internet "fast lanes" to buyers like Netflix and YouTube. If the FCC is going to impose new rules to preserve net neutrality, ISPs like Verizon would probably prefer the agency uses its authority under Section 706 of the Telecommunications Act because this would result in less regulation. That's why Verizon has promised not sue as long as any new net neutrality rules don't involve Title II.
But, Verizon's history with the FCC is clouding the picture.
The FCC is seriously consider utility classification under Title II because of actions Verizon took a few years ago. In 2010, the FCC instituted net neutrality rules using Section 706, but Verizon successfully sued to reverse the rules.
Verizon sued and won, with a federal appeals court stating that the FCC could not issue what amounted to common carrier rules without first reclassifying broadband service as a utility, similar to the traditional phone network.
Fearing another challenge, the FCC might view the utility reclassification as its only option.
"We are going to be sued," FCC Chairman Tom Wheeler said last week.
Verizon, however, won't be the one suing as long as the FCC uses Section 706 - or so the company says.
[Verizon Executive VP Randal] Milch's e-mail was made public in an ex parte letter filed with the commission yesterday. Milch wrote that rules based on Section 706 "will not be the object of a successful court challenge—by Verizon or anyone else."
Even if Verizon doesn't sue, that doesn't mean another ISP won't take that course. So, the FCC has to cover all of its bases if it decides in favor of net neutrality. It's ironic that Verizon's past opposition to net neutrality under Section 706 may actually force the FCC to use Title II now.