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On April 11, 2014, the Massachusetts Supreme Judicial Court (SJC) extended the pure-emergency exception to allow police officers and other public officials to enter a home without first obtaining a warrant “to render emergency assistance to animals.”1 The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights each require a judicial determination of probable cause prior to a government intrusion into an individual’s dwelling.2 Nevertheless, there are a number of exceptions to this requirement. One such exception “permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.”3 The SJC’s holding in Duncan extends that pure emergency exception to the rendering of emergency aid to animals as well.4
II. The Warrantless Entry Of The Defendant’s Home
Police officers arrived at the defendant’s home after receiving a telephone call from a neighbor who reported two dead dogs and one “emaciated” dog on the defendant’s property. Upon arrival, police officers “heard a dog ‘whimpering and very hoarsely and weakly barking’” from behind the defendant’s privacy fence. To get a better view, the officers climbed a nearby snowbank and saw three dogs leashed to a fence; two were “motionless” and “frozen” and one was “emaciated” and “barking.”5 There appeared to be no food or water for the animals. The officer’s attempts to alert any occupants in the defendant’s home—by engaging their police cruiser’s siren, emergency lights, and air horn and utilizing various public records to contact them—were unsuccessful.
The officers, relying on police protocol for handling animal-related emergencies, contacted the fire department to remove the locks on the defendant’s privacy fence. Once inside the defendant’s yard, the officers contacted animal control to remove the dogs. The entire event lasted less than two hours. The Essex County District Attorney’s Office charged the defendant with three counts of animal cruelty, under Chapter 272 of the Massachusetts General Laws.6
The defendant moved to suppress the police officers’ observations and the physical evidence giving rise to the charges, arguing the observations and evidence were unlawfully obtained under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. The District Court judge granted the defendant’s motion to suppress, reasoning that “‘[Massachusetts] courts have not as yet applied the emergency exception to animals.’”7 Nevertheless, the judge reported the question of law to the SJC, under the Massachusetts Rules of Criminal Procedure.8 The question presented to the SJC was “‘Does the ‘pure emergency’ exception to the warrant requirement extend to animals?’”9
III. A brief Summary of The Emergency Exception to the warrant requirement and decisions in other jurisdictions permitting the exception for animals
As noted above, both the United States Constitution and the Massachusetts Declaration of Rights consider a police officer’s entry into a home, a “serious governmental intrusion into one’s privacy,” and these provisions were designed to limit such intrusions.10 Despite this protection, courts have recognized an exception that allows police to enter into a person’s dwelling without a warrant if there is an “objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.”11 The need to protect the life of another person obviates the need for a warrant because of the impracticality of obtaining one during such an emergency.12 The emergency exception, unlike other exigency-based exceptions, is not based on investigating criminal activity and does not require the showing of probable cause.13 In order to ensure constitutional protections, there are two strict requirements for a warrantless entry under the emergency exception: the officer must have an objectively reasonable belief that an emergency exists; and the conduct of the officer, following the entry, must be reasonable under the circumstances.14
In many instances, this emergency exception can discreetly transform into a criminal investigation. There are numerous instances where an officer has responded to a reported emergency that resulted in an arrest.15 Despite the requirement to act reasonably, an officer’s subjective belief does not invalidate the exception.16 Additionally, the exception permits the officer to conduct a “protective sweep” in areas where the emergency may reasonably be found.17 Furthermore, any contraband or evidence of criminal activity observable in “plain view” during the emergency-based entry is subject to seizure.18
Prior to this case, there was a presumption that the emergency aid exception was related and limited to an imminent injury to a human being. In Massachusetts, there was no precedent or statutory provision for the courts to rely upon. Other state courts, for example, had addressed the issue by declaring that a reasonable interpretation of the emergency aid exception would permit the rendering of aid to “vulnerable and helpless animals.”19 Moreover, several states have held that “needless suffering and death” of animals is an exigent circumstance.20 These various state appellate court decisions display a growing consensus among the states that animals fall within the scope of living organisms protected by the emergency exception to the warrant requirement.
IV. The Supreme Judicial Court’s use of Statutory public policy to expand the emergency exception to include Animals
The SJC relied heavily on public policy underlying Massachusetts’s criminal statutes. The Court reasoned that it would be counterintuitive to punish individuals for animal mistreatment and abuse but prohibit officers from entering an alleged abuser’s dwelling without a warrant to render reasonable emergency aid.21 In particular, judges have the authority to make a totality-of-the-circumstances finding of whether there is imminent threat of bodily injury to a pet and judges are required to notify officers of such a finding.22
The SJC relied upon these statutes and noted that courts may consider such policies “when no previous decision or rule of law is applicable.”23 The Court concluded that rejecting the expansion of the emergency aid exception would run contrary to the underlying policy rationales and objectives of the statutes criminalizing animal mistreatment. Additionally, the SJC reasoned that not allowing officers or other public officials to enter a home without a warrant to provide emergency assistance to animals would force untrained persons to intervene, resulting in harm to the animal, layperson, or community at large.24 The SJC did limit the scope of the exception to animals harmed by humans, noting that without human action “the threshold for police entry . . . will be considerably higher.”25 Finally, in dicta, the Court noted a list of potential factors that other courts have considered, such as the species of the animal, the privacy interest at issue, the degree of police effort to obtain consent prior to entry, and the extent of intrusion and damage resulting from the entry.26 The Court remarked that the above list was not exhaustive and emphasized the need for a case-by-case determination upon the totality of the circumstances.
While the SJC’s ruling does appear to comport with the underlying policy objectives behind statutes criminalizing animal mistreatment and cruelty, this expansion of the emergency aid exception could open a defendant’s rights to abuse by officers seeking to use a whimpering dog as pretext for searching a person’s home for other illegal activity without probable cause or even reasonable suspicion. The SJC did go to rather great lengths to emphasize the limitations imposed by the emergency aid doctrine. In fact, the Court’s opinion hinted that it might be very difficult to utilize the animal-emergency exception when the injuries are not a result of a human cruelty, by stating that such an entry would have a “considerably higher” threshold. Additionally, the Court highlighted that the emergency exception requires officers to act reasonably under the circumstances. This should restrict the officer to the removal of the endangered animal; however, if the officer were to observe contraband, or other evidence of a crime, in plain view, such evidence would be admissible.
The factors enumerated above also demonstrate an attempt by the Court to impose limitations and case-by-case scrutiny by examining the totality of the circumstances. The factor derived from Suss, which examines the measures undertaken by officers to obtain consent prior to entry, has the potential to prevent secret entries when the residents of the dwelling are available to provide consent. Nonetheless, the SJC, in the future, will certainly be prompted to address what constitutes the minimum amount of effort to obtain consent. The Court also noted that the species of the animal was relevant, which raises the logical question of what counts as a protected animal. Perhaps there is some solace that officers, in cases reported in other jurisdictions, only seized neglected or abused animals. Nonetheless, as the Court notes, future litigation will have to flesh out the issues that will naturally arise from the Duncan decision.
The courts of the Commonwealth should vigilantly attempt to safeguard against allowing evidence from an otherwise unlawful search and seizure under the guise of rendering aid to tortured helpless animals. The SJC’s opinion makes a valiant effort to prevent abuse of the ruling, but the judges throughout the Commonwealth must strive to keep this ruling narrow and limited to circumstances that require immediate entry to preserve the life of an animal.
James Gardner Long III, Commentary, SJC Expands Pure Emergency Exception to Animals in Duncan, 2 Suffolk U. L. Rev. Online 52 (Sep. 12, 2014), http://suffolklawreview.org/sjc-expands-pure-emergency-exception
Under Article 66(c) of the Uniform Code of Military Justice (UCMJ), the military’s courts of criminal appeals have the unusual appellate power to conduct a de novo review of a trial court’s findings of fact. Congress gave the military’s appellate courts their unique fact-finding powers in 1950 because under the original UCMJ, special and general courts-martial were highly unprofessional proceedings and extremely susceptible to command influence, thereby creating the risk of unjustly convicting and harshly sentencing servicemembers. Originally, there were not even military judges presiding at summary courts-martial. Instead, a senior line officer untrained in the law was designated president of the panel and was responsible for deciding questions of law, such as the admissibility of evidence. The panel president also served as a juror, voting with the panel to decide the accused’s guilt or innocence and sentencing. While law officers were present at general courts-martial, they were not the presiding officers of the court and lacked the traditional judicial powers bestowed upon judges to ensure the integrity of trials and other judicial proceedings. Furthermore, both the law officer and panel president were hand-picked and evaluated by the convening authority. Based on this structure and the high potential for both prejudicial command influence and legal error, the appellate courts’ de novo review of a trial court’s findings of fact was an important protection for servicemembers.
Today, these justifications for the plenary fact-finding powers of the courts of criminal appeals no longer exist. Due to amendments to the UCMJ over the past fifty years, military trials now resemble civilian trials and are presided over at both special and general courts-martial by an independent and professional circuit of military judges with powers modeled after Article III judges. This has reduced the potential for command influence while increasing the professionalism of trials, thus mitigating the chances of legal error. Furthermore, the fact-finding power of the military’s courts of criminal appeals is actually an impediment to justice because it adds a considerable burden on the military’s already severely backlogged appellate system. Claims of factual insufficiency are frequently and easily made by appellate defense counsel, but are very time consuming for appellate prosecutors to respond to. Despite this huge investment of resources in conducting a de novo review of claims of factual sufficiency, the courts of criminal appeals almost never find factual insufficiency. On the rare occasion they do, courts rarely reduce a sentence, and therefore, the high costs of the power’s continued existence cannot be justified. Not only will removing this de novo fact-finding power reduce the military’s appellate backlog, but it will also do so without prejudicing the rights of servicemembers because they already have numerous due process protections that civilians do not.
Cap-and-trade is a failed policy. Under the Kyoto Protocol, global emissions have continued to increase and the European Union Emissions Trading System (EU ETS) price collapsed due to hot air and over allocation of emissions. The time has come to abandon cap-and-trade as a method or means of potentially reducing global greenhouse gas (GHG) emissions. As such, the European Union Twenty-Seven (EU-27) should abandon the EU ETS and adopt a carbon tax with reinvestment (CTR), leading the way for the United Kingdom, United States, and China to also adopt this strategy. Together, the EU-27, United Kingdom, United States, and China account for 57% of total carbon-dioxide emissions, not including land use and deforestation. If these countries, which account for approximately 65% of global gross domestic product (GDP) and over 60% of world trade, adopt this system, it would provide a significant incentive for the remainder of the world to adopt similar legislation.
The tax would apply to all goods and services based on emissions intensity plus shipping emissions, and once collected, countries can retain the revenue for the purposes of rebuilding the power grid and developing alternative energy sources for transportation. This formula will lead to significant reductions in GHG emissions. With a CTR in place, the EU, United States, United Kingdom, and China would reduce their economy-wide emissions by 48%, 49%, 51%, and 13%, respectively, within twenty years. This would amount to a combined 34.2% reduction of current global emissions, which is a significant down payment to avoiding the world warming by more than 2oC. With respect to China, the 13% reduction is contrasted with most current projections that it will double its GHG emissions. This would occur while automatically putting a border-trade adjustment in place. Finally, the EU is heavily dependent on energy imports. The majority of these imports come from Russia, which has flexed its energy muscle multiple times under President Putin. With a CTR structure, the EU would become energy independent in the power and heating sectors, thus providing added political, as well as economic power, for the EU on the world stage.
Due to the ambiguous language of the Fourth Amendment, courts have been unable to agree on a strict test as to what constitutes a reasonable search and seizure. For example, in United States v. Falso, the court held that evidence of child molestation, by itself, did not create probable cause for a search warrant for child pornography. In its reasoning, the court concluded that a crime involving the sexual abuse of a minor does not relate to child pornography. Therefore, officers lacked sufficient probable cause when executing the search warrant issued by the magistrate.
Likewise, in United States v. Hodson, the court held that evidence of child molestation, without more, was insufficient to create probable cause for a search warrant for child pornography. The court reasoned that when “probable cause [is established] for one crime (child molestation) but [the warrant is] designed . . . for evidence of an entirely different crime (child pornography)” the warrant lacks probable cause. Therefore, because there was no relation between the two crimes and no reasonable inference could be made to link the two for sufficient probable cause, the court held the search warrant to be defective.
The extraterritorial reach of the Federal Rules of Civil Procedure’s (Federal Rules) evidence-gathering provisions has long been a source of tension in foreign relations. The world we live in is increasingly interconnected and litigation between parties subject to multiple sovereigns has become more commonplace. Often, the discovery provisions of the Federal Rules come into conflict with foreign laws, such as banking secrecy or blocking statutes. Under such a predicament, a litigant that operates both abroad and in the United States is placed in a catch-22: produce discovery in violation of foreign law (and be subject to liability) or refuse to produce discovery (and be subject to sanctions). These types of scenarios can arise in almost every context and implicate the laws of many of nations. For example, consider the Securities and Exchange Commission’s (SEC) recent conflict with Deloitte’s branch in China regarding the production of documents. The SEC sought documents related to Deloitte’s audit of Longtop Financial Technologies, but Deloitte claimed it was barred from doing so by Chinese secrecy laws.
Courts have attempted to resolve these conflicts in a variety of ways. The United States Supreme Court has even offered guidance. Federal courts, however, continue to apply an inconsistent standard that balances various interests. Thus, it is common for courts to decide cases in this area in conflicting fashion. The conflicting decisions, however, run further than a typical circuit split. The United States District Court for the Southern District of New York recently decided virtually identical cases involving the discovery obligations of Chinese banks differently. Neither judge was wrong in either of those cases; rather, the legal standard itself provides the judiciary with almost unlimited discretion to make subjective policy judgments.
For many Americans, the thought of providing any form of medical care to a convicted murderer is incomprehensible, a sentiment embodying the tenuous interplay between principles of morality and the rule of law. The reality is that prisoners throughout the United States frequently undergo various medical procedures to treat their health care needs, but for transsexual prisoners, the uphill battle to receive treatment, including hormone therapy and sex-reassignment surgery (SRS), has been plagued by the courts’ general resistance to recognize the severity of gender dysphoria. The Eighth Amendment has long been interpreted to afford a prisoner the right to receive adequate medical care and treatment for his or her serious medical needs. The Supreme Court has further explained that the Eighth Amendment’s protections must conform to shifting and maturing notions of decency and social justice.
Gender Identity Disorder (GID) has been recognized as a mental illness; individuals currently incarcerated and suffering from GID—or gender dysphoria as it has been recently renamed—assert that SRS is a “medically necessary” treatment for this condition under the Eighth Amendment. In 2012, the United States District Court for the District of Massachusetts became the first American court to grant an injunction mandating a prison to provide SRS to a transsexual prisoner in the case of Kosilek v. Spencer (Kosilek II). Michelle Kosilek, a male-to-female transsexual currently serving a life sentence for the murder of her wife, sought to have the Massachusetts Department of Corrections (DOC) provide her with the controversial procedure. The DOC doctors determined that the only adequate treatment for Kosilek’s condition was to undergo the procedure but nonetheless denied treatment out of the purported rising fears for prison security. Holding that the security concerns were merely a pretext for denying treatment, the court found that prison officials were deliberately indifferent to Kosilek’s serious medical needs and ordered the treatment.
New York City currently maintains one of the lowest crime rates among all major American metropolitan areas. Several decades ago, however, the urban hub of the Empire State found itself in peril as it experienced a devastating rise in violent crime. This upward trend persisted until the early-to-mid 1990s when statistics on crime began to indicate a change for the better. Crime rates in New York City continued to descend until the turn of the millennium when they stagnated, resulting in a plateau of reported crime, which continues to endure. The plummeting crime numbers coincided with an historic ascent in the number of stop and frisks performed by city police officers. The decline in urban crime and simultaneous rise in stop and frisks suggests a correlation between the two phenomena.
The discourse surrounding the stop-and-frisk practices in New York City is dominated by the poignant argument of critics claiming that such practices have been unjustly used as a vehicle for discrimination by the New York Police Department (NYPD). Moreover, particular crime statistics do in fact indicate that stop and frisks carried out by the NYPD have disproportionately targeted people of color. Drawing conclusions based solely on the interpretation of raw data, however, paints an incomplete picture of a complex issue. A more thorough examination of the larger context of urban crime and policing practices suggests that a variety of additional factors account for the racially disproportionate figures.
When the United States Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977, its chief concern was deterring off-the-books bribes of foreign officials by domestic corporations. The FCPA authorized the Securities and Exchange Commission (SEC) to issue new rules, including Rule 13b2-2, which imposes civil liability on corporate officers who mislead accountants concerning the corporation’s finances. In SEC v. Das, the Eighth Circuit Court of Appeals addressed the issue of whether civil liability is present in cases where the corporate officer did not knowingly mislead. Splitting from the Ninth Circuit—the only other circuit court that addressed this issue directly—the Eighth Circuit rejected the proposed “knowingly” requirement, holding that a reasonableness standard shall apply in such cases.
Das concerned infoUSA, Inc., a publicly traded, Nebraska-based corporation that sold databases to businesses and consumers. More specifically, the case concerned events involving three corporate officers: Vinod Gupta, who served as chief executive officer and chairman until 2008; Rajnish Das, chief financial officer from 2003 to 2006; and Stormy Dean, chief financial officer from 2000 to 2003 and then again from 2006 to 2008. The SEC claimed, in a 2010 civil enforcement action, that Dean violated provisions of the Securities Exchange Act of 1934. The agency claimed, among other things, that both former chief financial officers, Das and Dean, deceived auditors concerning payments infoUSA had made to Aspen Leasing Services LLC and Annapurna Corporation—two companies owned by Gupta—to pay for Gupta’s homes, yacht, and cars. The SEC’s complaint further alleged that Dean and Das had signed the company’s management letters to external auditors, falsely representing that all related-party transactions had been properly disclosed. At trial, the judge instructed the jury to find that Dean violated the law if he did not act “reasonably” regarding the false statements made to auditors.
The U.S. tax code allows citizens and domestic corporations to credit foreign taxes paid against U.S. taxes owed. A foreign tax paid by a U.S. citizen or a domestic corporation may be creditable against domestic taxes when such tax is considered a levy on income. Although the tax’s “predominant character” controls in determining whether it is an income tax, the effect of a foreign country’s characterization of the tax on such analysis has remained unsettled. In PPL Corp. v. Commissioner, the Supreme Court considered whether a windfall tax paid in the United Kingdom (U.K.), and characterized by the U.K. as a tax on value and not a tax on income, is creditable in the United States. The Court held that the tax formula adopted by the U.K. Labour Party was an income tax in the United States for credit purposes because the economic reality of the levy was a tax on the company’s income.
A Conservative Party-controlled British Parliament privatized certain government-owned companies in the 1980s and 1990s through an initial sale to the public known as a “flotation.” Petitioner PPL Corporation (PPL) was a U.S. company that owned twenty-five percent of one of the privatized companies, South Western Electricity plc (SWE). For the four years after privatization, the British government required certain companies, including SWE, to charge customers the same rates they had charged under the government’s control. The companies became much more efficient during this period and earned large profits.
In Verizon v. FCC,1 the United States Court of Appeals for the District of Columbia, for the second time in four years, reviewed the Federal Communications Commission’s (FCC) authority to impose “net neutrality” rules on broadband service providers’ network management practices.2 In 2005, the FCC issued a policy statement outlining the principles of Internet neutrality applicable to all Internet service providers operating in the United States in an effort to make broadband networks “widely deployed, open, affordable, and accessible to all consumers.”3 After the policy was adopted, the FCC discovered that Comcast Corporation was limiting bandwidth to peer-to-peer sharing websites in contravention of the Internet-neutrality principles. In response, the FCC issued an order requiring Comcast to disclose sufficient details of its network management practices and to create a compliance plan to end the unreasonable practices.4 Following the issuance of the order, Comcast petitioned for judicial review of the FCC’s authority to regulate their broadband network management practices.5 The D.C. Circuit agreed with Comcast, holding that the FCC only had the authority to compel open network practices on common carriers, which broadband providers did not qualify as.6 Shortly after the D.C. Circuit’s 2010 ruling in Comcast, the FCC adopted the Open Internet Order which imposed Internet-neutrality rules of disclosure, antiblocking, and antidiscrimination on broadband providers.7 Verizon then petitioned for judicial review of the FCC’s authority to adopt the Open Internet Order.8
The FCC was established by Congress under the Communications Act of 1934 (Act of 1934) to regulate interstate and international communications transmitted by radio, television, wire, satellite, and cable.9 One of the FCC’s major enforcement provisions under the Act of 1934 mandated that common carriers provide their communications services to the general public on a nondiscriminatory basis.10 Under the Act of 1934, all telecommunications carriers were classified as “common carriers,” with telecommunications defined as the “transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”11 The FCC continues to classify these purely transmission-based services as “telecommunications services.”12
The FCC’s regulatory authority was subsequently overhauled by the Telecommunications Act of 1996 (Act of 1996).13 The Act of 1996, among other things, expanded the jurisdiction of the FCC to intrastate telecommunications and also reinforced the nondiscrimination principles for telecommunications providers. The FCC was also given the power to regulate “information services,” defined as the “offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”14 Notably, information services providers were not classified as common carriers and were thus not subject to the same antidiscrimination laws as telecommunications service providers.15 In 2002, the FCC issued a declaratory ruling that classified cable modem service as an “interstate information service” causing those services to fall within its jurisdiction; however, the ruling stated that cable modem services do not contain a separate telecommunications service offering and as a result are not subject to common-carrier regulation.16 Subsequently, many companies petitioned for judicial review of this declaratory ruling. The United States Court of Appeals for the Ninth Circuit held that while cable modem services can be classified as information services, the FCC could not reasonably construe the Act of 1996 as exempting cable modem service carriers from the common-carrier regulations.17 The FCC, in response, petitioned for certiorari to the United States Supreme Court. The Court granted certiorari and overturned the Ninth Circuit’s ruling, holding that the FCC’s conclusion that broadband cable modem companies are exempt from mandatory common-carrier regulation was a lawful construction of the Act of 1996.18
Due to the Brand X ruling, all cable broadband providers in the United States are classified as information services and are not subject to the common-carrier regulations, while dial-up Internet providers are subject to such regulations. Despite the early absence of regulation of information services, the FCC signaled its intention to regulate these services when it issued a policy statement in 2005 containing four principles of Internet neutrality, which aimed at preserving and promoting the open and interconnected nature of the Internet.19 This policy was eventually struck down by the D.C. Circuit when the court determined that the FCC lacked jurisdiction to impose common-carrier regulations on broadband providers.20 The FCC argued that the Act of 1934 gave the Commission ancillary power to impose common-carrier regulation on broadband providers; however, this argument was defeated.21 In response to the Brand X and Comcast rulings—along with the latent ambiguity surrounding the FCC’s ability to regulate information service providers—there have been many proposed bills in Congress attempting to resolve the status quo, most imposing the common-carrier regulation of antidiscrimination on broadband providers.22
In Verizon v. FCC, the D.C. Circuit was aware of the potential ramifications of its holding and began by reviewing whether the FCC had statutory authority to regulate broadband providers pursuant to section 706(a) and (b) of the Act of 1996, which requires the FCC to promote competition in the local telecommunications market.23 The court held that the FCC had statutory authority, in accordance with the FCC’s revised interpretation of section 706. The court then proceeded to review whether the Internet-neutrality rules adopted in the Open Internet Order exceeded the FCC’s scope of authority.24 The court concluded that because the FCC had classified broadband providers as information services without a telecommunications element, and because the Open Internet Order rules relative to antidiscrimination and antiblocking amounted to per se common-carrier regulations, those rules could not be imposed on broadband providers who were otherwise exempt from such regulation.25 The FCC argued that the Open Internet Order rules did not impose common-carrier regulations on broadband providers and that they were not “carriers” as defined in the Act of 1996. Nevertheless, the court found these arguments unpersuasive, reasoning that although broadband providers were not carriers, they were obligated to act like common carriers as a practical result of the Open Internet Order rules.26 All three Judges of the D.C. Circuit in Verizon agreed that the Open Internet Order rules impermissibly imposed antidiscriminatory and antiblocking regulations on broadband providers; however, Judge Silberman, dissenting in part, argued that section 706 of the Act of 1996 did not grant the FCC affirmative authority to promulgate these Internet-neutrality rules.27
Because broadband providers are not subject to antidiscriminatory and antiblocking rules as a result of Verizon, these providers are able to favor certain websites and web services over others.28 This ability to freely discriminate amplifies the impact of web-service and broadband-provider agreements, such as the recent agreement between Netflix and Comcast.29 Though on its face this transaction eliminates the intermediary backbone provider, allowing Comcast to manage the dissemination of data between Netflix and end-users directly, it also permits Comcast to both offer a fast broadband package to web services that can afford it and to slow down, or throttle, data speeds for web services unwilling or unable to pay them for faster speeds.30 This practice will serve not only to stifle competition in the broadband market—as newer companies may not be able to afford a broadband provider’s prices—but will also impose costs on the end-user who will either have to pay more or be forced to use a web service that has its data speeds throttled.31 In addition, Verizon also impacts the looming Comcast and Time Warner merger, in which the resulting organization would be providing broadband to nearly one-third of the country.32 Without any antidiscriminatory or antiblocking rules in effect, a broadband provider covering that much of the country would be in an advantageous bargaining position in the event it decides to implement discrimination and blocking practices against web services; and the web service might only be left with the choice to pay what the broadband provider is asking or risk going out of business.
The D.C. Circuit’s conclusion in Verizon was practical and well-rooted in the law when it struck down the FCC’s Internet-neutrality rules for broadband providers because the FCC’s own classification system with respect to information service providers exempted them from such regulations.33Moreover, the FCC’s classification between telecommunication services and information services was upheld by the Supreme Court, and prior attempts to apply common-carrier regulations upon broadband providers have similarly been struck down by the courts.34 Nevertheless, the Court’s decision leaves the future of net neutrality and a free and open Internet uncertain. Congressional action is now the only solution to this problem. Congress must legislate in the area of Internet neutrality or reclassify broadband providers as common carriers. Although previous congressional attempts aimed at achieving this result have been defeated, the looming megamerger of Comcast and Time Warner, as well as the web-service and broadband-provider agreements between key providers such as Comcast and Netflix should have an impact. Indeed, it is clear that the ramifications of not having Internet-neutrality laws are now becoming more apparent to Congress than ever before.
R. Brice Turner, Case Note, D.C. Circuit in Verizon Strikes FCC’s “Net Neutrality” Rules for Broadband Providers, 2 Suffolk U. L. Rev. Online 46 (May 22, 2014), http://suffolklawreview.org/turner-verzion.