On July 23, 2012, the NAM filed a brief in support of Verizon’s fight against net neutrality, which constitutes rate regulation, requiring Internet Service Providers to carry the internet traffic of "edge" providers free of charge and effectively prohibiting paid prioritization of certain traffic streams. This is the second time the FCC has had to defend its attempt to impose net neutrality, with the first attempt ending in the court's finding in Comcast Corp. v. FCC that the Commission did not have legal authority to enforce such principles.
The brief in this case argued that rules for net neutrality were again not within the authority of the FCC. The Commission apparently found that the Telecommunications Act of 1996 endowed it with sweeping authority to regulate the internet, despite the fact that Congress never actually did so. Even if the FCC has the authority to regulate broadband Internet access, the provisions for regulation only allow it to take steps to make the markets more competitive. Numerous economists, including one that was formerly with the FCC, declared that net neutrality will not help make markets more competitive. In addition, the agency relied on unsupported speculation that regulation would lead to increased deployment of the internet, while the evidence before it overwhelmingly demonstrated that net neutrality regulations would inhibit deployment, interfering with business operations.
The NAM supports increased deployment of broadband internet services without unnecessary and burdensome regulations and efficient spectrum management issues. Policymakers should remove barriers to entry, remove regulations that dampen investment incentives, rely on industry practices that promote transparency and enhance consumer and business choices, and ensure technology-neutral competition for all providers.
On Jan. 14, 2014, the court sent back to the FCC its non-discrimination and no-blocking requirements on the basis that they improperly constitute common carriage regulation of broadband services. It found that the agency had the authority to regulate broadband internet service, and upheld the Commission's authority to adopt Open Internet rules. But the FCC improperly applied non-discrimination and no-blocking requirements to Internet Service Providers, which are not common carriers subject to such provisions.