Top FCC Lawyer: Agency Will Win “Inevitable” Legal Fight Over Net Neutrality

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Gigi Sohn, the FCC chairman’s special counsel for external affairs, spoke to TechCrunch about the net neutrality plan FCC Chairman Tom Wheeler released Wednesday. The plan, which will use Title II of the Communications Act to ensure open Internet, is the strongest protection of a neutral Internet that the agency has ever proposed.

Sohn said the agency was “over the moon” about the plan it had developed. It has received widespread praise from technology companies, but opposition among Internet Service Providers and members of Congress is sure to instigate a legal battle.

This Friday, Sohn will host a Twitter ‘town hall’ to discuss the FCC’s plan.

After the proposal came out, Sohn broke down some of the most complex aspects of the net neutrality debate. (Responses lightly edited for clarity and length.)

On The Combination Of Title II, Section 706 and Title III reform

“We like to say it’s the belt, the belt and the suspenders. The critical thing is we are reclassifying broadband Internet access as a Title II service. That is the biggest thing, and that allows us to move forward with the strongest possible authority. We also have authority through Section 706 and Title III for mobile. So basically we’re using all of our authority. We’re not letting any of it languish.”

On The Likely Legal Fight

“It’s been over a ten-year slog to get these rules right. We really feel confident that we are on the strongest possible grounds. We will win the inevitable legal challenge.”

On A Possible Rise In Taxes

“They’re just wrong.” (Sohn noted questions remain about where universal service fees will be applied.)

On The Extent Of The FCC’s Authority

“We have a lot of leeway when it comes to determine what our authority should be. We feel very, very good.”

On Members Of Congress Challenging That Authority

“This is what Congress does. Congress legislates. They do what they do, we do what we do. Obviously there’s already been an effort and we think efforts will continue, but we need to move ahead with what we’re doing.”

On The Chairman’s Changing Position

“This has been an evolution. When the chairman put out his proposal, it was just that: a proposal, one in which he was willing to have his mind changed. He feels strongly that when he engages in a rule making […] that doesn’t mean it’s set in stone.”

On President Obama’s Influence

“By early fall the chairman had already decided that Title II at a minimum had to be part of any solution, long before the president said anything related to Title II was on his plate. A lot of that came from consumer input.”

On The Protections For Interconnection

For the very first time interconnection is going to be considered a Title II service and will give companies like Amazon, Netflix, Google … the opportunity to come in and make the case that fees or practices by the ISP’s are unjust and unreasonable. This is a really big deal.”

“If you recall when the chairman first proposed net neutrality rules not for interconnection but for the broadband internet access service, he was looking at a commercially reasonable standard. And he came to find out largely after speaking to consumers and startups and others that that standard was going to be interpreted as what industry thinks is reasonable.”

Taken in whole, Sohn appears confident in both the approach, and substance of the FCC’s net neutrality plan. It is also clear, given her words, that the chairman of the FCC was not bullied into his choices by the president, as some of his political opponents have alleged. That would not be possible, given that the chairman had already incorporated Title II into his thinking before the president called for it. Don’t expect that point to land in Washington, however.