The Eminent Domain Angle In "Net Neutrality"

by Robert Thomas, InverseCondemnation.com, November 10, 2014

So, the President today announced support of "net neutrality," which Wikipedia describes as "the principle that Internet service providers and governments should treat all data on the Internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, or mode of communication."

President Obama has come out in support of reclassifying internet service as a utility, a move that would allow the Federal Communications Commission to enforce more robust regulations and protect net neutrality. "To put these protections in place, I'm asking the FCC to reclassifying internet service under Title II of a law known as the Telecommunications Act," Obama says in a statement this morning. "In plain English, I'm asking [the FCC] to recognize that for most Americans, the internet has become an essential part of everyday communication and everyday life."

Full story here. Sounds pretty good, right?

Maybe not if you happen to be one of those internet service providers. As lawprof Daniel Lyons argues in Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation, 86 Notre Dame L. Rev. 65 (2011):

under the Supreme Court’s Takings Clause jurisprudence, the Commission’s proposed net neutrality rules effect a permanent physical occupation of private broadband networks and therefore take broadband providers’ 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’s takings jurisprudence has repeatedly dubbed “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”

At least one internet service provider, Verizon, had earlier challenged the net neutrality concept in the D.C. Circuit, relying upon the above-cited law review article.

Something is telling us that as of this morning, Professor Lyons' article is going to jump to the top of the most-downloaded list on SSRN.

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