The U.S. Court of Appeals in D.C. rejected a petition by broadband providers to review the FCC’s decision last year to reclassify the internet as a regulated phone-like telecommunications service — as opposed to a mostly unregulated information system.
“Today’s ruling is a victory for consumers and innovators who deserve unfettered access to the entire web, and it ensures the internet remains a platform for unparalleled innovation, free expression and economic growth,” FCC Chairman Tom Wheeler says. “After a decade of debate and legal battles, today’s ruling affirms the Commission’s ability to enforce the strongest possible internet protections – both on fixed and mobile networks – that will ensure the internet remains open, now and in the future.”
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The FCC and net neutrality supporters say that regulators need to be sure that independent services can compete on web services controlled by a handful of companies. They fear that internet providers such as Comcast, Verizon, and AT&T will favor particular content providers — including themselves — by throttling or hampering rivals such as Netflix.
Today’s decision, supported by judges David Tatel and Sri Srinivasan, says that “given the tremendous impact third-party internet content has had on our society, it would be hard to deny its dominance in the broadband experience. Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie. The same assuredly
cannot be said for broadband providers’ own add-on applications.”
Opponents say the FCC overstepped its authority, and could chill investors from supporting internet growth.
AT&T General Counsel David McAtee says his company “always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal.”
The National Cable & Telecommunications Association says it is “reviewing today’s split decision…before determining next steps.”
The industry group adds that this is “unlikely the last step in this decade-long debate over Internet regulation.” It called on congressional leaders to “renew their efforts to craft meaningful legislation that can end ongoing uncertainty, promote network investment, and protect consumers.”
In a partial dissent, Judge Stephen Williams criticizes the FCC for not demonstrating that a few internet providers control the market. The agency effectively “performed Hamlet without the Prince—a finding of market power or at least a consideration of competitive conditions.”
The FCC reclassified the internet in February 2015 as a response to the Appeals Court’s decision in early 2014 to remand FCC net neutrality rules adopted in 2010. Judges said that in 2002 and 2005 the FCC relinquished much of its authority to regulate Internet traffic when it defined broadband as a lightly regulated information service governed by the 1996 Telecommunications Act.
If regulators wanted to impose net neutrality rules, justices said, then the FCC would have to redefine it as a common carrier governed by the 1934 Communications Act.
The FCC followed the court’s advice — with public support from President Obama and a widely watched call to action by John Oliver. The comedian’s examination of net neutrality helped inspire a record 4 million people to ask the FCC to act.
Supporters and opponents of today’s court decision are releasing their responses. Here’s a sampling:
Writers Guild of America, West:
The years of hard work with our coalition partners have paid off…. The Court’s unambiguous decision solidifies the Open Internet as we know it, allowing the online video market to continue its dramatic growth fueled by increased competition, independent production, and diverse content.
Pantelis Michalopoulos, a partner at law firm Steptoe & Johnson (represents Netflix, Dish Network, and Comptel):
The third time was the charm. The open Internet rules are here to stay. Often in Washington, it is tough to discern who won or lost. That was the case with the Verizon case in 2014: the court said the FCC had the authority to make open Internet rules, but had to go back to the drawing board. This time there is no doubt who is the winner: the open Internet. The gatekeepers may not block or throttle our information. They may not ask information to pay tolls. They may do nothing that unreasonably disadvantages users or content providers. And our iPhone is as safe as our PC: wireless Internet access providers are subject to the rules too.
Free Press CEO Craig Aaron:
Today’s ruling proves the FCC chose the correct legal path to protect internet users from discrimination by AT&T, Comcast, Verizon and other broadband providers. The agency can now stay focused on safeguarding the open communications networks that power our democracy and our economy and on promoting broadband competition,privacy and affordable internet access for everyone.
The people have spoken, the courts have spoken and this should be the last word on Net Neutrality. The companies and Congress should listen to the will of the people, follow the law and let the FCC do its job. But if and when opponents of the open internet try to take their case to Congress or the Supreme Court, we remain committed to continuing the fight alongside the millions of Americans who are dedicated to preserving an internet that’s open to everyone.
USTelecom President Walter McCormick:
Two judges on the court have unfortunately failed to recognize the significant legal failings of the Federal Communications Commission’s decision to regulate the internet as a public utility, leaving in place regulation we believe will replace a consumer-driver internet with a government-run internet, threatening investment and innovation in years to come. Our industry strongly supports open internet principles and the FCC’s order is wholly unnecessary to keeping the internet open. We will continue to work toward policies that facilitate America’s broadband leadership, are reviewing the court’s decision, and will be evaluating all of our legal options.
Consumers Union Senior Policy Counsel George Slover:
This is a big win for consumers. The court upheld what net neutrality advocates have said since the beginning: the FCC has the clear authority to ensure that the Internet remains free and open for consumers. While we are thrilled about today’s victory, we know that opponents will keep up the fight in Congress and the courts, and we’ll keep fighting alongside the millions of consumers who have spoken out for net neutrality.
Tech Knowledge Director Fred Campbell:
Until today, the federal courts interpreted the First Amendment as prohibiting the FCC from regulating the transmission of video content and the distribution of newspapers as common carriage. Today’s decision abandons this protection for the freedom of the press and gives government the right to censor the news by imposing restrictions on its distribution….It’s now up to the Supreme Court to protect the First Amendment principles that form the foundation of a free and open society.
American Cable Association CEO Matthew Polka:
ACA is disappointed that the D.C. Circuit supported the FCC’s decision to regulate the complex, computer-like networks of ISPs as though they are ‘dumb’ pipes provided by monopoly telephone companies. ACA continues to believe that the FCC acted contrary to law and decades of precedent in relying on Title II of the Communications Act as the legal basis for its new regulations, whose burdens fall disproportionately upon smaller ISPs. Although ACA needs time to review the Court’s ruling to assess the need for further litigation, ACA expects to seek review of the decision.
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