Federal Ruling Against FCC Strikes Blow to Net Neutrality

A U.S. federal appeals court has struck a hard blow to net neutrality, with a new ruling that partially negates the Open Internet Order established by the Federal Communications Commission (FCC).

The FCC’s Open Internet Order (PDF), released in December 2010, established three rules as “broadly accepted Internet norms.” First, it required broadband providers to disclose characteristics, terms, and conditions of broadband services; second, it prevented those providers from blocking lawful content, applications, services, and “non-harmful” devices; third, those carriers couldn’t “unreasonably discriminate in transmitting lawful network traffic.”

The U.S. Court of Appeals for the District of Columbia’s ruling (PDF; big hat tip to Ars Technica for the link) acknowledges concerns that, without net-neutrality rules in place, broadband providers would choke off Internet content that didn’t suit corporate wants or needs. “For example, a broadband provider like Comcast might limit its end-user subscribers’ ability to access the New York Times website if it wanted to spike traffic to its own news website,” the ruling suggested, “or it might degrade the quality of the connection to a search website like Bing if a competitor like Google paid for prioritized access.”

While noting those broader issues, the court decided to focus very narrowly on the lawsuit under consideration for appeal, in which Verizon challenged the Open Internet Order on a number of fronts. As detailed in the ruling, Verizon argues that “the Commission lacked affirmative statutory authority to promulgate the rules, that its decision to impose the rules was arbitrary and capricious, and that the rules contravene statutory provisions prohibiting the Commission from treating broadband providers as common carriers.”

The court agreed, finding that the FCC doesn’t have the ability to regulate broadband providers in such a manner: “Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.” Since the FCC apparently failed to establish “that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations,” the court decided to vacate a portion of the Open Internet Order.

In a written statement, the FCC said it would appeal the court’s ruling. “We will consider all available options, including those for appeal,” read the statement attributed to FCC Chairman Tom Wheeler, “to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”

So what does this mean for net neutrality? The FCC could fight to classify broadband providers as common carriers, which would surely spark a series of vicious legal and political battles. Whatever option the agency pursues, the door’s been cracked open a little for Verizon, AT&T, and other broadband companies to try and impose their will on the Web—but as the ruling also made clear, the FCC retains the power in principle to regulate the Internet, perhaps through new rules that reframe net neutrality.


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