ISPs Lose En Banc Appeal, Current Net Neutrality Rules Remain Intact…For Now

from the if-at-first-you-don't-succeed dept

Last June, you’ll recall that the U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s net neutrality rules, claiming the FCC was within its rights to reclassify ISPs as common carriers under Title II of the Communications Act. In fact, the FCC was driven toward that move by Verizon, which sued to overturn the agency’s much weaker 2010 rules. Needless to say, ISPs were quick to try and appeal last June’s court decision by requesting an en banc hearing before the whole court.

This week the court refused the industry’s request, meaning the existing 2015 rules crafted and passed under former FCC boss Tom Wheeler remain intact. Consumer groups and content and hardware trade groups like Incompas were quick to applaud the ruling as a victory for consumers and those wary of large ISP attempts to hamper streaming video competition:

“Today?s court decision is a significant blow to those who want to take away Open Internet protections, raise prices and cut off the streaming revolution. The FCC and the courts have spent a significant amount of time and effort over more than a decade on various Open Internet policies, and the current law has shown itself to be both legally sustainable and market effective.”

Of course things have been complicated by the fact that current FCC boss Ajit Pai last week unveiled his plan to kill the existing net neutrality rules and replace them with the policy equivalent of wet tissue paper. So while the current net neutrality rules will continue to stand, for now, Pai (likely with Congress’ help) continues his attempt to roll the rules back at the behest of AT&T, Comcast, Verizon and Charter. ISP lawyers could appeal the en banc rejection to the Supreme Court, but with the current FCC looking to completely kill the rules anyway, it doesn’t seem likely that the high court would hear the case.

And while consumer groups got notably excited about having any win in what’s been an ugly few months for consumer-centric telecom policy, the actual opinions in the en banc rejection are a somewhat mixed bag. It’s worth noting that the rejection made it clear that the en banc appeal was refused, at least in part, because of Pai’s decision to launch a new NPRM:

“En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC?s Order. The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one. In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement.”

And the dissenting positions of some of the judges are notably alarming in some regards. Especially that of Judge Brett Kavanaugh, who somehow managed to buy into an ISP claim that the courts — and most observers — had been laughing at for years. Specifically, the ISP claim that net neutrality rules somehow hamper their First Amendment rights. Said Kavanaugh:

“Absent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers. Absent a showing of market power, the Government may not tell Internet service providers how to exercise their editorial discretion about what content to carry or favor any more than the Government can tell Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry; or tell ESPN or the NFL Network what games to show; or tell How Appealing or Bench Memos what articles to feature; or tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor.”

Again though, arguing that rules protecting consumers from anti-competitive ISP behavior is a free speech issue remains a bizarre distortion. The idea was largely shot down during the court’s ruling last year. Even many ISPs had been walking away from this argument — after having simply used it as a scattershot attempt to see what claims stuck. But in their own options, Judges Srinivasan and Tatel are quick to warn that Kavanaugh’s opinion, if piggybacked upon during future rulemaking, could let large ISPs easily dodge Pai’s plan to hold them accountable via “voluntary” commitments and shaky FTC oversight:

“Under that view, an ISP, for instance, could hold itself out to consumers as affording them neutral, indiscriminate access to all websites, but then, once they subscribe, materially degrade their ability to use Netflix for watching video ? or even prevent their access to Netflix altogether ? in an effort to steer customers to the ISP?s own competing video-streaming service. Alternatively, an ISP, again having held itself out as affording its customers an unfiltered conduit to internet content, could block them from accessing (or significantly delay their ability to load) the Wall Street Journal?s or the New York Times?s website because of a disagreement with the views expressed on one or the other site.

An ISP has no First Amendment right to engage in those kinds of practices. No Supreme Court decision suggests otherwise … The First Amendment does not give an ISP the right to present itself as affording a neutral, indiscriminate pathway but then conduct itself otherwise. The FCC?s Order requires ISPs to act in accordance with their customers? legitimate expectations. Nothing in the First Amendment stands in the way of establishing such a requirement in the form of the net neutrality rule.”

Where we go from here could get even complicated (at a time when Joe Public already had no idea what any of this means), but the opinions of the en banc rejection will be certain to resurface on May 18, when Pai’s 2-1 partisan majority will formally vote to begin dismantling the rules. Keep in mind Pai still has to prove to the courts that the market has changed substantively enough to justify a complete reversal of Title II in the wake of last year’s court ruling.

Pai knows this will be a challenge, which is why it seems likely that net neutrality opponents will try to use Pai’s saber rattling to push through a “compromise” GOP law promising to “fix” net neutrality once and for all. Folks relentlessly pushing this route tend to ignore the fact that large ISP lobbyists and lawyers will be the ones writing these laws, ensuring they’re so packed with loopholes as to be less helpful than no rules at all.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “ISPs Lose En Banc Appeal, Current Net Neutrality Rules Remain Intact…For Now”

Subscribe: RSS Leave a comment
Anonymous Coward says:

Absent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers.

Somewhere a judge has confused the pizza parlor with the telephone company, that is the cable business with the Internet connection business. As a result he is trying to say that the phone company can decide which pizza parlor you can order your pizzas from because the phone company also has an associated business of selling pizzas.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Older Stuff
09:32 AT&T Whines That California Net Neutrality Rules Are Forcing It To Behave (11)
06:23 The New York Times (Falsely) Informs Its 7 Million Readers Net Neutrality Is 'Pointless' (51)
15:34 Facebook's Australian News Ban Did Demonstrate The Evil Of Zero Rating (18)
04:58 'Net Neutrality Hurt Internet Infrastructure Investment' Is The Bad Faith Lie That Simply Won't Die (11)
05:48 Dumb New GOP Talking Point: If You Restore Net Neutrality, You HAVE To Kill Section 230. Just Because! (66)
06:31 DOJ Drops Ridiculous Trump-Era Lawsuit Against California For Passing Net Neutrality Rules (13)
06:27 The Wall Street Journal Kisses Big Telecom's Ass In Whiny Screed About 'Big Tech' (13)
10:45 New Interim FCC Boss Jessica Rosenworcel Will Likely Restore Net Neutrality, Just Not Yet (5)
15:30 Small Idaho ISP 'Punishes' Twitter And Facebook's 'Censorship' ... By Blocking Access To Them Entirely (81)
05:29 A Few Reminders Before The Tired Net Neutrality Debate Is Rekindled (13)
06:22 U.S. Broadband Speeds Jumped 90% in 2020. But No, It Had Nothing To Do With Killing Net Neutrality. (12)
12:10 FCC Ignores The Courts, Finalizes Facts-Optional Repeal Of Net Neutrality (19)
10:46 It's Opposite Day At The FCC: Rejects All Its Own Legal Arguments Against Net Neutrality To Claim It Can Be The Internet Speech Police (13)
12:05 Blatant Hypocrite Ajit Pai Decides To Move Forward With Bogus, Unconstitutional Rulemaking On Section 230 (178)
06:49 FCC's Pai Puts Final Bullet In Net Neutrality Ahead Of Potential Demotion (25)
06:31 The EU Makes It Clear That 'Zero Rating' Violates Net Neutrality (6)
06:22 DOJ Continues Its Quest To Kill Net Neutrality (And Consumer Protection In General) In California (11)
11:08 Hypocritical AT&T Makes A Mockery Of Itself; Says 230 Should Be Reformed For Real Net Neutrality (28)
06:20 Trump, Big Telecom Continue Quest To Ban States From Protecting Broadband Consumers (19)
06:11 Senators Wyden And Markey Make It Clear AT&T Is Violating Net Neutrality (13)
06:31 Net Neutrali-what? AT&T's New Streaming Service Won't Count Against Its Broadband Caps. But Netflix Will. (25)
06:23 Telecom's Latest Dumb Claim: The Internet Only Works During A Pandemic Because We Killed Net Neutrality (49)
13:36 Ex-FCC Staffer Says FCC Authority Given Up In Net Neutrality Repeal Sure Would Prove Handy In A Crisis (13)
06:27 Clarence Thomas Regrets Brand X Decision That Paved Way For The Net Neutrality Wars (11)
06:17 The FCC To Field More Comments On Net Neutrality. Maybe They'll Stop Identity Theft And Fraud This Time? (79)
08:56 AT&T, Comcast Dramatically Cut Network Spending Despite Net Neutrality Repeal (16)
06:18 Ajit Pai Hits CES... To Make Up Some Shit About Net Neutrality (24)
06:24 Mozilla, Consumer Groups Petition For Rehearing of Net Neutrality Case (22)
06:49 AT&T Exec Insists That No Broadband Company Is Violating Net Neutrality Even Though AT&T Is Absolutely Violating Net Neutrality (19)
06:45 Shocker: ISPs Cut Back 2020 Investment Despite Tax Breaks, Death Of Net Neutrality (61)
More arrow