Internet Archives - Page 16 of 31 - The National Law Forum

LinkedIn, the Fair Credit Reporting Act, and the Real-World Implications of Online Activity

With the ever-increasing amount of information available on social media, employers should remember to exercise caution when utilizing social media as a part of their Human Resources/ Recruitment related activities. We live in a digital-age, and how people choose to define themselves is often readily showcased on social networking sites. Whether – and how – employers choose to interact with the online presence of their workforce will continue to develop as the relevant legal standards try to catch up.

A recent federal court filing in the Northern District of California against LinkedIn Corp. provides yet another example of the growing interaction between online personas and real-world employment law implications. There, in Sweet, et al v. LinkedIn Corp., the plaintiffs sought to expand the application of the Fair Credit Reporting Act (“FCRA”) by alleging that LinkedIn’s practice of providing “reference reports” to members that subscribe to LinkedIn’s program for a fee, brought LinkedIn within the coverage of the FCRA as a Credit Reporting Agency (“CRA”). Briefly, the FCRA (and relevant state statutes like it) imposes specific requirements on an employer when working with “any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” In other words, there are rules – such as providing requisite disclosures and obtaining prior authorization – that apply when an employer engages a CRA to perform background checks, reference checks and related inquiries.

In the lawsuit, the plaintiffs alleged that LinkedIn was a CRA – and that these various rules should apply – because LinkedIn collected and distributed consumer information to third parties and the resulting reference reports “bear on a consumer’s character, general reputation, mode of living, or personal characteristics, and/or other factors listed in 15 U.S.C. § 1681a(d).” Further, according to the complaint, LinkedIn violated the FCRA because it should have provided FCRA compliant disclosure and followed the reporting obligations applicable to CRAs.

LinkedIn, which is touted as the “world’s largest professional network,” does not portray itself as a CRA and moved to dismiss the complaint. LinkedIn argued that the plaintiffs’ interpretation of the statute was too broad and, moreover, was inconsistent with the facts. A federal judge agreed and dismissed the complaint (although the plaintiffs have the opportunity to file another complaint). The Court ruled that these reference searches could not be considered “consumer reports” under the law – and LinkedIn was not acting as a CRA – because, in part, the plaintiffs had voluntarily provided their information to LinkedIn with the intention of it being published online. (The FCRA excludes from the definition of a consumer report a report that contains “information solely as to transactions or experiences between the consumer and the person making the report.”) The Court also noted that the allegations suggested that LinkedIn “gathers the information about the employment histories of the subjects of the Reference Searches not to make consumer reports but to ‘carry out consumers’ information-sharing objectives.’”

The LinkedIn case should still serve as a reminder of several important and interrelated trends. First, as it concerns the FCRA, the statute is broadly worded to cover “any written, oral or other communication of any information by a consumer reporting agency . . .” and the equally expansive definition of a CRA can apply in numerous situations that extend beyond the traditional notion of a consumer reporting agency. If applicable, the requirements of the FCRA must be followed. Second, employers need to continue to be mindful of the fact that their online activity can have real-world employment law implications. Third, as the law governing traditional employment law continues to evolve in response to online developments, the challenges to that activity will evolve as well.

Authored by: Ian Gabriel Nanos and Maxine Adams of Epstein Becker & Green, P.C.

Is Your Firm Prepared for Google’s Newest Algorithm?

‘Mobilegeddon’ has been taking over the internet this week. On Tuesday, Google announced a big change to its search algorithm. What does that mean for your law firm website?

Google’s newest update will essentially give a boost in organic (non-paid) search results to websites that are mobile friendly. The idea is to encourage website developers to create websites that are more user friendly on smart phones. The more mobile friendly and content rich the website is, the higher it will rank in Google’s organic search results.

Google spokeswoman Krisztina Radosavljevic-Szilagyi explained, “As people increasingly search on their mobile devices, we want to make sure they can find content that’s not only relevant and timely, but also easy to read and interact with on smaller mobile screens.”

According to NPR, Google stated that as soon as a website is made mobile friendly, its position within the search results will begin to improve. This is excellent news for law firms that have not yet made the move to a responsive, mobile friendly, website. Google’s latest news is saturating the internet.

ARTICLE BY

Brian Lynch

RW Lynch Company, Inc.

Telecoms File Lawsuit Challenging Net Neutrality Rules

The Federal Register officially published the FCC’s new rules governing net neutrality on Monday, April 13, 2015, and the new rules will take effect 60 days following the date of publication. As anticipated, AT&T and the wireless and cable industry groups immediately filed suit in the D.C. Circuit Court to challenge the new rules on Tuesday, April 14, 2015. The litigation is spearheaded by AT&T and its trade group CTIA – The Wireless Association which also represents Verizon, Sprint and T-Mobile. The suit represents a new stage in the telecommunications industry’s efforts to challenge the recently enacted rules. Read additional coverage of the suit including potential arguments the telecommunications groups will raise, and stay tuned for our take on the developing litigation.

ARTICLE BY

Allen Matkins Leck Gamble Mallory & Natsis LLP

California Wireless Law Blog

.CASINO gTLD Launches Sunrise

The new gTLD .casino opens to the public on June 3. Trademark owners may be able to register their trademark as a .casino domain name ahead of the public launch. The “sunrise” early registration period for trademark owners opened March 24 and ends May 23. .casino domain name registrations are available now for trademark owners that have already recorded their marks with the trademark clearinghouse (TMCH). As explained below, there is still time for mark owners that have not yet recorded marks with the TMCH to participate in the sunrise registration period.

Gaming enterprises should do what they can to protect their trademarks in the .casino gTLD prior to June 3. Given the proliferation of online gaming, the new gTLD .casino poses a particularly high risk to trademark owners in the gaming industry. The .casino gTLD is a regulated gTLD, meaning registrants must represent that they have the appropriate licenses and credentials and must report any material changes to the registry. However, in many jurisdictions, the licensing process is far less strict than it is in the U.S. and it is not clear how the registry plans to verify such representations.

Risks Associated with .CASINO

The gTLD .casino is one of hundreds of new gTLDs launched as part of the first phase of the Internet Corporation for Assigned Names and Numbers (ICANN’s) new gTLD program. The new gTLDs offer more registration options to the public than existing “traditional” gTLDs such as .com, .net, .org, .biz and .info. But with hundreds of new gTLDs comes an increase in risk for trademark owners. For gaming enterprises, the highest risk posed by the new gTLDs is the new gTLD .casino. Third party registration of your mark or brand as a .casino domain name could cause immense damage to your brand and company. Imagine third party operation of the domainwww.YOURBRAND.casino for an offshore gaming site, a site that redirects consumers to your legitimate or illegitimate competitors, or a site that otherwise tarnishes your brand.

Mark owners can prevent this scenario by recording their marks with the TMCH and participating in the .casino sunrise and/or landrush domain registration periods. Although there are options for enforcement “after the fact” of a third party registration for your brand, these may face difficult proof problems (especially as to the necessary showing of “bad faith”) and can be expensive.

The Trademark Clearinghouse (TMCH)

Generally, only trademarks registered with a national trademark office, such as the U.S. Patent and Trademark Office (USPTO), are eligible for registration with the TMCH. Recordation with the TMCH offers several benefits, but the critical benefit of TMCH recordation is eligibility to register the recorded mark as a domain name during the sunrise registration period for any new gTLD, including .casino. Trademark owners may not participate in the sunrise registration period for .casino without first recording their trademark(s) with the TMCH.

In our experience, it takes up to three weeks for the TMCH to complete the recordal process. Accordingly, for companies planning on participating in the .casino sunrise period, we recommend filing TMCH recordal(s) by no later than April 30. Please contact us to discuss the recordal of marks with the TMCH.

Sunrise Registration

Mark owners who have recorded trademark(s) with the TMCH are eligible to participate in the sunrise registration period for .casino. We expect the sunrise registration fees for a .casino domain name to fall between $200 and $300. The sunrise period is open until May 23 but validation of your trademark registration and specimen of use may take two to three weeks. During the sunrise period, mark owners may only register a domain name consisting of the identical mark recorded with the TMCH. For example, the owner of the TMCH recorded mark MYMARK is eligible to register the domain www.mymark.casino during the sunrise period, but is not eligible to register the domain www.mymarkslots.casino absent a separate TMCH recordation for the mark MYMARK SLOTS. In the latter case, we would recommend that the owner of the HOUSE mark consider the landrush registration period if it believes there is a high risk associated with the domain www.mymarkslots.casino. Further, please note that USPTO Supplemental Register registrations are not eligible for recording in the TMCH.

Landrush Period

Another advance registration period, known as the “landrush period” or “early access phase,” opens May 27. The landrush period is open to anyone willing to pay the fees associated with obtaining a landrush registration. Trademark registrations and TMCH recordation are not required for eligibility to participate in the landrush period.

Landrush registration fees depend on the date of registration. The registration fees start at $12,500 per domain on the first day of landrush, when demand for .casino domain names is presumably highest. The fees decrease to $4,500 on the second day, $1,500 on day three, $950 on day four, and $250.00 on days five through seven. These fees are in addition to the general registration fees for a .casino domain name.

The landrush period may be a good option for mark owners seeking to register domain strings that are not eligible for recordal with the TMCH. Such strings may consist of common law marks, or of a registered mark plus a generic term such as “slots.” The decision of whether and when to register domains during the landrush period is a business decision, weighing the potential risk of third party ownership of a given domain against the registration fees for a given day of the period.

Summary of .CASINO Deadlines

The .casino sunrise registration period is open now and closes May 23. TMCH recordals for marks intended for .casino sunrise registration should be filed by no later than April 30. The landrush period opens May 7 and closes June 2, with landrush fees decreasing daily over the period. .casino opens for general registration on June 3.

ARTICLE BY

Nathaniel W. Edwards

Lewis Roca Rothgerber LLP

IoT – It’s All About the Data, Right?

A few weeks ago, the FTC released a report on the Internet of Things (IoT). IoT refers to “things” such as devices or sensors – other than computers, smartphones, or tablets – that connect, communicate or transmit information with or between each other through the Internet. This year, there are estimated to be over 25 billion connected devices, and by 2020, 50 billion. With the ubiquity of IoT devices raising various concerns, the FTC has provided several recommendations.

Security

The report includes the following security recommendations for companies developing Internet of Things devices:

Build security into devices at the outset, rather than as an afterthought in the design process
Train employees about the importance of security, and ensure that security is managed at an appropriate level in the organization
Ensure that when outside service providers are hired, that those providers are capable of maintaining reasonable security, and provide reasonable oversight of the providers
When a security risk is identified, consider a “defense-in-depth” strategy whereby multiple layers of security may be used to defend against a particular risk
Consider measures to keep unauthorized users from accessing a consumer’s device, data, or personal information stored on the network
Monitor connected devices throughout their expected life cycle, and where feasible, provide security patches to cover known risks

Data Minimization

The report suggested companies consider data minimization – that is, limiting the collection of consumer data, and retaining that information only for a set period of time, and not indefinitely. Data minimization addresses two key privacy risks: first, the risk that a company with a large store of consumer data will become a more enticing target for data thieves or hackers, and second, that consumer data will be used in ways contrary to consumers’ expectations.

Notice and Choice

The FTC provided further recommendations relating to notice and choice. It is recommended that companies notify consumers and give them choices about how their information will be used, particularly when the data collection is beyond consumers’ reasonable expectations.

What Does This Mean for Device Manufacturers?

It is evident from the FTC’s report that security and data governance are important features for IoT device manufacturers to consider. Although the report suggests implementing data minimization protocols to limit the type and amount of data collected and stored, IoT device manufacturers should not be short-sighted when deciding what data to collect and store through their IoT devices. For many IoT device manufacturers, the data collected may be immensely valuable to them and other stakeholders. It would be naïve to decide not to collect certain types of data simply because there is no clear use or application of the data, the costs and risks of storing such data are cost prohibitive or because they want to reduce their exposure due to a security breach. In fact, quite often IoT device manufacturers do not realize what types of data may be useful. IoT device manufacturers would be best served by analyzing who the stakeholders of their data may be.

For instance, an IoT device manufacturer that monitors soil conditions of farms may realize that the data they collect can be useful, not only to farmers, but also to insurance companies to better understand water table levels, produce suppliers, wholesalers, and retailers to predict produce inventory, farm equipment suppliers, among others. Because of this, IoT device manufacturers should identify the stakeholders of the data they collect early and revisit the data they collect to identify new stakeholders not previously identified based on trends that can be determined from the data.

Moreover, IoT device manufacturers should constantly consider ways to monetize or otherwise leverage the data they gather and collect. IoT device manufacturers tend to shy away from owning the data they collect in an effort to respect their customers’ privacy. Instead of not collecting sensitive data at all, IoT device manufacturers would be best served by exploring and implementing data collection and storage techniques that reduce their exposure to security breaches while at the same time allay the fears of customers.

ARTICLE BY

Shabbi S. Kahn

Foley & Lardner LLP

The New Competition – Emerging Legal Technologies Out of Silicon Valley

In January, the National Law Review had pleasure of attending theAnnual Marketing Partner Forum in beautiful Rancho Palos Altos, California. Programing was provided by the Legal Executives Institute at Thomson Reuters and featured over 15 hours of dynamic workshops. Hundreds of marketing partners, managing partners, in-house counsel and senior-level marketing and business development professionals were in attendance.

The “New Competition” program featured emerging legal technologies within Silicon Valley. Catherine Hammack of Jurispect, Monica Zent of Foxwordy, and Daniel Lewis of Ravel Law each showcased their innovative technologies and shared their thoughts as to where innovation is taking the legal industry in 2015.

“Jurispect will help fundamentally transform how companies operate by providing organizations with a real-time analytical view of both exposure and opportunities to take proactive steps to manage legal and regulatory risk.” – Catherine Hammack

Catherine was present on two momentous occasions in U.S. financial history: as an intern at Arthur Anderson when Enron was indicted, and as a first-day associate at Bingham McCutchen the day Lehman Brothers filed for bankruptcy, and the start of the financial crisis in 2008. Following her time at Bingham as a financial litigator, she transitioned to join Google’s Policy team, where her perspective on legal services dramatically changed.

As Catherine elaborated in a post-conference interview: “There was a huge gap between the way law firms traditionally provide counsel and the way companies need information to make business decisions.” She was surrounded by engineers and data scientists who were analyzing vasts amounts of data with cutting edge technology. Catherine became interested in adapting these technologies for managing risk in the legal and regulatory industries. Inspired by Google’s data-driven decision making policies, she founded Jurispect.

Jurispect is a tool that companies can use to track legal and regulatory changes relevant to their industry, and possibly to identify risks earlier on to help avoid future Enrons and Lehman Brothers. Currently, Jurispect is geared toward companies in the financial services and technology space, and will be expanding into other regulated industries in the very near future. Key decision makers in the corporate legal, compliance and risk departments of companies are benefitting from Jurispect’s actionable intelligence. The user’s experience is customized: Jurispect’s technology adjusts based on user profile settings and company attributes. As the user continues to utilize Jurispect, its algorithms continuously calibrate to improve the relevancy of information presented to each user.

Jurispect’s team of seasoned experts in engineering, data science, product management, marketing, legal and compliance collaborated to develop the latest machine learning and semantic analysis technologies. These technologies are used to aggregate information across regulatory agencies, including sources such as policy statements and enforcement actions. Jurispect also analyzes information in relevant press releases, and coverage by both industry bodies and mainstream news. The most time-saving aspect of Jurispect are the results that coalesce into user-friendly reports to highlight the importance and relevance of the regulatory information to their company. Users can view this intelligence in the form of notifications, trends, and predictive analytics reports. Jurispect makes data analytics work for legal professionals so they spend less time searching, and more time on higher level competencies. As Catherine elaborated, “We believe that analytics are quickly becoming central to any technology solution, and the regulatory space is no exception.”

“Foxwordy is ushering in the era of the social age for lawyers and for the legal industry.” – Monica Zent

Monica is an experienced entrepreneur and had already been running a successful alternative law firm practice when she founded Foxwordy. Foxwordy is a private social network that is exclusively for lawyers. Monica reminded the audience that we are, remarkably, ten years into the social media experience and all attorneys should consider a well rounded social media toolkit that includes Foxwordy, Twitter, and LinkedIn.

However, as Monica elaborated in a post-conference interview, LinkedIn, for example, “falls short of the needs of professionals like lawyers who are in a space that is regulated; where there’s privacy, [and] professional ethics standards.” As an experienced attorney and social seller, Monica understands that lawyers’ needs are different from other professionals that use the more mainstream and very public social networks, which is why she set out to create Foxwordy.

Foxwordy is currently available to licensed attorneys, those who are licensed but not currently practicing but regularly involved in the business of law, certified paralegals, and will eventually open up to law students. Anyone who fits the above criteria can request membership by going to the homepage, and all potential members go through a vetting process to ensure that they are a member of the legal community. At its inception, the Foxwordy team expected to see more millennials and solo practitioners taking advantage of the opportunity to network on Foxwordy. Those populations have joined as expected, but what was surprising is how the product resonated across all demographics, positions and segments of the legal industry. Foxwordy has seen general counsels, in-house counsels, solo practitioners, major law firm partners, law school deans, judges, politicians and more become members.

Foxwordy is currently available to join and will be emerging out of public beta around summertime this year. As Monica said during her presentation “Time is the new currency”, and what the Foxwordy team has found via two clinical trials is that engaging Foxwordy saves lawyers an average of two hours per day. Membership includes all the core social features such as a profile page, connecting with others, the ability to ask questions and engage anonymously, exchange referrals, and exchange other information and resources. Free members experience all the core functions fully and there is a premium membership that is available with enhanced features and unlimited use of Foxwordy. In the closing thoughts of her post-conference interview, Monica shared that “the ability to engage anonymously and discreetly, yet at the same time collaborate with our legal colleagues and engage with them on a social level has been very powerful.”

“There is an amazing opportunity to use data analytics and technology to create a competitive edge for lawyers amidst all of this information…” – Daniel Lewis

Data analytics and technology has been used in many different fields to predict successful results. In his presentation, Daniel pointed out that fields traditionally considered more art than science have benefitted from the use of data analytics to predict accurate results.

Having conducted metrics-based research and advocacy while at the Bipartisan Policy Center, and observing how data-driven decision making was being used in areas like baseball and politics, Daniel was curious why the legal industry had fallen so far behind. Even though the legal field is often considered to be slow moving, there are currently over 11 million opinions in the U.S. judicial system with more than 350,000 new opinions issued per year. There is also a glut of secondary material that has appeared on the scene in the form of legal news sources, white papers, law blogs and more. Inspired by technology’s ability to harness and utilize vast amounts of information, Daniel founded Ravel Law to accommodate the dramatically growing world of legal information.

Ravel Law is optimized for all lawyers across the country. Currently, thousands of associates, partners, and in-house counsel are using Ravel. Ravel has as also begun working with 30 of the top law schools around the country, with thousands of law students learning how to use it right alongside legal research staples such as Westlaw and LexisNexis. Professors and students around the country have also independently discovered Ravel and are using and teaching it. When asked why he works with law schools, Daniel said “We work with schools because students are always the latest generation and have the highest expectations about how technology should work for them.” Students have given the Ravel team excellent feedback and have grown into a loyal user base over the past few years. Once these students graduate, they introduce Ravel to their firms. Ravel’s user base has been growing very quickly and they have only released a small portion of what their technology is ultimately capable of.

Ravel’s team of PhDs and technical advisors from Google, LinkedIn, and Facebook, has coded advanced search algorithms to determine what is relevant, thereby enhancing legal research’s effectiveness and efficiency. Ravel provides insights, rather than simply lists of related materials, by using big data technologies such as machine learning, data visualization, advanced statistics and natural language processing. In a post-conference follow up Daniel elaborates: “Our visualizations then show how the results connect in context, helping people understand the legal landscape very rapidly as well as find needles in the haystack.” Ravel guides users toward analysis of relevant passages in a particular case, without navigating away from the original case or conducting a new search. Daniel and his colleagues will be launching more new features this year and are looking forward to continuing to “transform how attorneys search and understand all legal information.”

Sponsors of Net Neutrality Bill Receive Thousands from Internet Service Providers

Late last month, Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR) held a hearing to discuss congressional action on net neutrality. The representatives, who chair House committees that oversee the Federal Communications Commission (FCC), also released an early draft of a bill to regulate the open flow of information on the Internet.

Rep. Greg Walden (R-OR) pictured in foreground. Image source: House GOP Leader/Flickr

Consumer advocates have argued the draft proposal fails to adequately regulate net neutrality, and instead voiced support FCC Commissioner Tom Wheeler’s efforts to regulate the internet like a utility. The FCC isscheduled to vote on Commissioner Wheeler’s proposal on Feb. 26.

Campaign Contributions: MapLight analysis of campaign contributions from employees and political action committees (PACs) of the four largest internet service providers in the United States, AT&T, Comcast, Time Warner Cable, and Verizon Communications, to the campaign committees of Rep. Fred Upton (R-MI) and Greg Walden (R-OR) during the 2014 election cycle.

Member	Amount Received
	AT&T	Comcast	Time Warner Cable	Verizon Communications	Total
Rep. Fred Upton (R-MI)	$10,000	$37,600	$21,500	$30,400	$99,500
Rep. Greg Walden (R-OR)	$5,000	$32,050	$14,500	$5,250	$56,800
Total	$15,000	$69,650	$36,000	$35,650	$156,300

The top four internet service providers, AT&T, Comcast, Time Warner Cable, and Verizon Communications, contributed $156,300 to Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR) during the 2014 election cycle.
The four companies contributed $99,500 to Rep. Upton.
The four companies contributed $56,800 to Rep. Walden.
The top contributor, Comcast, contributed $69,650 to the two chairmen during the 2014 election cycle.

To view lobbying data for AT&T, Comcast, Time Warner Cable, and Verizon Communication please click here.

Campaign Contributions Methodology: MapLight analysis of campaign contributions to Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR) from PACs and employees of the AT&T, Comcast, Cox Communications, Time Warner Cable, and Verizon Communications, the four largest internet service providers in the United States, from January 1, 2013 to December 31, 2014. Contributions data source: Federal Election Commission

FTC Releases Extensive Report on the “Internet of Things”

On January 27, 2015, U.S. Federal Trade Commission (FTC) staff released an extensive report on the “Internet of Things” (IoT). The report, based in part on input the FTC received at its November 2013 workshop on the subject, discusses the benefits and risks of IoT products to consumers and offers best practices for IoT manufacturers to integrate the principles of security, data minimization, notice and choice into the development of IoT devices. While the FTC staff’s report does not call for IoT specific legislation at this time, given the rapidly evolving nature of the technology, it reiterates the FTC’s earlier recommendation to Congress to enact strong federal data security and breach notification legislation.

The report also describes the tools the FTC will use to ensure that IoT manufacturers consider privacy and security issues as they develop new devices. These tools include:

Enforcement actions under such laws as the FTC Act, the Fair Credit Reporting Act (FCRA) and the Children’s Online Privacy Protection Act (COPPA), as applicable;
Developing consumer and business education materials in the IoT area;
Participation in multi-stakeholder groups considering guidelines related to IoT; and
Advocacy to other agencies, state legislatures and courts to promote protections in this area.

In furtherance of its initiative to provide educational materials on IoT for businesses, the FTC also announced the publication of “Careful Connections: Building Security in the Internet of Things”. This site provides a wealth of advice and resources for businesses on how they can go about meeting the concept of “security by design” and consider issues of security at every stage of the product development lifecycle for internet-connected devices and things.

This week’s report is one more sign pointing toward our prediction regarding the FTC’s increased activity in the IoT space in 2015.

FCC to Issue Net Neutrality Rules–Federal Communications Commission

In February, Federal Communications Commission Chairman Tom Wheelerwill circulate a draft order regarding Net Neutrality to his four fellow commissioners. The Net Neutrality rules will govern whether Internet service providers (ISPs), such as Comcast or Verizon, can block access to websites or give preferential treatment to traffic from websites that pay for such treatment. To sustain the rules, the commission may change the regulatory classification of broadband service, subjecting it to rules, known as Title II, that apply to traditional phone service, rather than the less restrictive Title I rules that currently cover broadband. 47 U.S.C. §§ 153–621.

This will be the FCC’s third attempt at imposing Net Neutrality obligations. The U. S. Circuit Court reversed the commission’s first two attempts, finding that the rules were inconsistent with the classification of broadband as a Title I service. Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010); Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014). In the most recent opinion, the court struck down two rules, one prohibiting ISPs from blocking access to websites and one prohibiting them from unreasonably discriminating against traffic from websites or applications.

In response, the FCC published a proposal to reinstate the rules with small changes to address the Court’s concerns. The proposal was roundly criticized by Net Neutrality proponents, because it did not flatly outlaw discrimination. President Obama weighed in with a statement in favor of Net Neutrality rules. Recently, Chairman Wheeler has strongly indicated that the new proposal will reclassify broadband as a Title II service and include a rule banning unreasonable discrimination. The Chairman plans to circulate a draft order to the other commissioners, giving them a chance to comment on the draft and vote on the proposal at the FCC’s open meeting on February 26.

The effect of the rules is uncertain. Rules banning discrimination have been in place for only three of the 12 years since Net Neutrality was first proposed. Even though discrimination was allowed for more than nine years of that time, ISPs have not been able to convince content providers to pay for priority treatment. The new rules may outlaw activities that the ISPs do not have the market power to engage in anyway. But the rules will give content providers comfort that the ISPs will not be able to charge them for priority service in the future.

The bigger (and more uncertain) impact will arise if the FCC reclassifies broadband as a Title II service. If this happens, the Commission will probably forbear from applying most sections of Title II to broadband. But the FCC’s authority to forbear from applying the statute in these circumstances is uncertain. Such a decision will be challenged on each section of Title II and the myriad of regulations under it. Litigation will last for years. If the FCC’s decision to forbear is reversed, the ISPs may be subject to some very onerous Title II regulations, such as obligations to resell their services, obligations to sell out of tariffs, and price restrictions. The outcome could be a messy hodge-podge of regulations that apply to some services and providers but not others.

ARTICLE BY

Category: Internet

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