The facial challenge to the FCC’s controversial network neutrality rules is under review by the DC Circuit. Even in the event of a government victory in that case, the legal battles against the Open Internet Order are far from over. Apart from the validity of the scheme itself, the FCC will likely confront an onslaught of as-applied challenges—some with problematic implications for the constitutionality of state-coerced network neutrality.
Many as-applied cases will involve resolving gray areas. The FCC is currently reviewing allegations that T-Mobile’s Binge On service—which offers unlimited access to video content from particular sources—violates anti-throttling rules. It will be up to judges to determine whether Binge On is an illegal attempt to circumvent the rules, or whether T-Mobile has found a legitimate loophole.
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