HPA 2018: Washington Update on the Future of Net Neutrality

In his annual HPA Tech Retreat address covering all the events in Washington, DC related to copyright law and other entertainment-related issues, Thompson Coburn attorney Jim Burger gave a tutorial on copyright basics he dubbed Copyright 101, and provided an overview on some of the issues related to the Library of Congress and the Music Modernization Act. But the majority of his focus was on the brouhaha over net neutrality and its recent repeal by the Republican-dominated (and chaired) FCC.

Burger showed a video of FCC chair Ajit Pai showing “all the things you can still do after the Obama era net neutrality is gone,” which included putting photos of your meal on Instagram, posting photos of cute animals, shopping for Christmas presents online, binge-watching TV shows and staying part of “your favorite fan community.”

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Burger also showed a schematic of how net neutrality works, focusing on the last mile and how net neutrality guaranteed that the ISP could not throttle traffic.

With the repeal of the Obama-era net neutrality, said Burger, “ISPs will be able to block or slow traffic, but will have to disclose new practices.” He pointed out that most people don’t have a choice of ISPs, and added that, “the states are having a lot of fun” with the net neutrality appeal.

“State attorney generals and net neutrality advocates have petitioned U.S. Court of Appeals for review,” said Burger. “I think it’ll be sustained — they won’t win.” But you never know, he noted, because of the Court of Appeals likes to “mess with” the FCC.

He reported that, “some in Congress are trying to repeal a regulation by introducing their own net neutrality bills” but this is a dubious project because no Republicans will join them. “I don’t know if they’ll even get a hearing on the bill,” he said. He added that, “some states are passing net neutrality bills.”

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“But in copyright, any state law that looks like copyright is pre-empted by federal law,” he said. “The FCC, however, says it won’t regulate it, so it’s going to be a dream for communications lawyers.”

Another effort among some states is to create “state procurement rules requiring net neutrality.” “I think the state has that power,” said Burger, noting that this path might bring some level of success in reinstating net neutrality.