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Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation

By Daniel A. Lyons


“Net neutrality” refers to the principle that broadband providers should not limit the content and applications available over the Internet. Long a rallying cry of techies and academics, it has become one of the central pillars of the Obama Administration\u27s telecommunications policy. The Federal Communications Commission\u27s efforts to regulate the “onramp to the Internet” have attracted significant attention from the telecommunications industry and the academic community, which have debated, among other things, whether the proposed restrictions violate broadband providers\u27 First Amendment rights. But there is an additional constitutional implication of net neutrality that has not yet been sufficiently addressed in the scholarly literature: the Takings Clause. This Article argues that under the Supreme Court\u27s Takings Clause jurisprudence, the Commission\u27s proposed net neutrality rules effect a permanent physical occupation of private broadband networks and therefore take broadband providers\u27 property without just compensation. In essence, net neutrality would grant Internet content providers a permanent virtual easement across privately owned broadband networks to deliver content to end-users. It thus would deprive broadband providers of the right to exclude others from their networks — a right that the Court\u27s takings jurisprudence has repeatedly dubbed “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”(FN1) At the very least, the Takings Clause issue raises a serious constitutional question regarding the Commission\u27s authority to adopt net neutrality regulations without clear authority from Congress to do so. The Commission should therefore seek explicit congressional approval before promulgating net neutrality rules, rather than continuing to freelance at the periphery of its regulatory authority. Reprinted by permission of the publisher

Topics: United States. Telecommunications Act of 1996, Network neutrality, Telecommunication, Virtual reality, Regulatory takings, First Amendment protections (United States Constitution), First Amendment protections
Publisher: NDLScholarship
Year: 2011
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