Appeals Court Fully Upholds FCC's Net Neutrality Rules

from the pop-the-bubbly dept

After months of anticipation the U.S. Court of Appeals for the D.C. Circuit has upheld the FCC's Open Internet Order, an indisputably-massive win for net neutrality advocates. The full court ruling (pdf) supports the FCC's arguments across the board, including the FCC's decision to classify internet providers as common carriers under Title II of the Communications Act. That's not only big for net neutrality, but it solidifies the FCC's authority as it looks to move forward on other pro-consumer initiatives such as the exploration of some relatively basic new privacy protections for broadband users.

Historically the DC Appeals court has been a mixed bag for the FCC, but in this instance the court declared the FCC's neutrality protections rest on solid legal ground from beginning to end, dismantling arguments by the likes of US Telecom, AT&T, and advocacy groups like TechFreedom from stem to stern. That includes industry attempts to prevent the rules from being applied to wireless networks (a split decision whereby fixed-line services were covered by wireless was not was something that had worried many telecom sector consumer advocates).

The court also repeatedly shot down ISP claims that the rules somehow violate their First Amendment rights:
"Because a broadband provider does not— and is not understood by users to—“speak” when providing neutral access to internet content as common carriage, the First Amendment poses no bar to the open internet rules."
The court also fully supports the FCC's contention that thanks to limited competition, broadband providers have plenty of incentive to act anti-competitively against "edge" providers like Netflix, and that this threat required FCC action:
"We also determined that the Commission had “adequately supported and explained its conclusion that, absent rules such as those set forth in the [2010 Open Internet Order], broadband providers represent[ed] a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.” Id.at 645. For example, the Commission noted that “broadband providers like AT&T and Time Warner have acknowledged that online video aggregators such as Netflix and Hulu compete directly with their own core video subscription service,” id.,and that, even absent direct competition, “[b]roadband providers... have powerful incentives to accept fees from edge providers, either in return for excluding their competitors or for granting them prioritized access to end users,” id.at 645–46.
Ironically, the internet has Verizon to thank for today's ruling. The telco sued to overturn the FCC's flimsy 2010 rules, which didn't cover wireless and quite by design included massive, tractor-trailer-sized loopholes. But in overturning the rules the previous court decisions gave the FCC a path forward -- in effect urging it to reclassify ISPs as common carriers under Title II. It may also be worth noting (again) that despite industry claims that this reclassification would result in telecom Armageddon, the internet and broadband investment (at least in marginally competitive areas) has rumbled along happily.

While a huge win for net neutrality fans everywhere, it's important to understand that the open internet isn't out of the woods yet. The fight could still stumble its way to the Supreme Court. The Presidential election could similarly culminate in a total dismantling of the current FCC and a restocking of the agency with ISP-allies eager to roll back the protections -- as well as the myriad other efforts the FCC's currently engaged in (cable set top box reform).

And as we've noted a few times zero rating and usage caps also play a huge role in determining what constitutes a level playing field for startups and other smaller companies, and the rules don't specifically address such concerns. In other words, we've noted that even while legally sound the FCC's rules have plenty of loopholes allowing ISPs to hinder net neutrality -- just as long as they're somewhat clever about it.

The FCC has stated they'll be looking at the potential anti-competitive ramifications of zero rating and usage caps on a "case by case basis." With the court's full support, hopefully that inquiry will culminate in a harder policy decision sooner rather than later.

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  • icon
    Mason Wheeler (profile), 14 Jun 2016 @ 8:12am

    The Presidential election could similarly culminate in a total dismantling of the current FCC and a restrocking of the agency with ISP-allies eager to roll back the protections

    Restrocking?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jun 2016 @ 8:40am

      Re:

      Re-Stroking....

      These guys have been stroking it for a long time. I would be okay with the FCC being dismantled. They never served their purpose to begin with. And with them being gone, maybe, just maybe the people will finally go back the congress and place blame were it should have been the entire time!

      reply to this | link to this | view in chronology ]

      • icon
        limbodog (profile), 14 Jun 2016 @ 8:59am

        Re: Re:

        And Congress would find a scapegoat (probably the FCC), absolve themselves of responsibility, and do nothing.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Jun 2016 @ 9:05am

          Re: Re: Re:

          They created them to be a scapegoat to begin with, at long as the plebs keep buying it we are still at a loss.

          So according to someone famous, the definition of insanity is to keep doing the same thing over and over again but expecting different results. I am tell you guys. Regulation is insanity! It only results in regulatory capture where YOU get screwed, the government holds YOU down while industry... you get the idea!

          reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 14 Jun 2016 @ 8:56am

      Re:

      Re-Stalking?

      Yes, the presidential election could very much result in re-stalking of the FCC in order to dismantle protections.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 14 Jun 2016 @ 9:04am

    Telecom Armageddon

    No. The mantra they need to be continually clubbed over the head with is 'dumb pipes'.

    That's it. Just dumb pipes.

    Competition will result in finding the most cost effective way to deliver the best dumb pipes. Rather then many, many other countries having far superior internet access, maybe the US could have decent internet at a decent price.

    Also, no content from the providers of dumb pipes. It seems that they just cannot resist trying to screw everyone over if they are allowed to do both dumb pipes and content at the same time. If they can do only one or the other, that would eliminate trying to use one to advantage the other while harming consumers.

    Even if dumb pipes can't have much competition, the content needs serious and real competition. We can't have hollywood squeezing out new forms of media, entertainment, or even just low cost independent films. Consumers should have equal access over the dumb pipes to connect to whatever source of legal content that they want to connect to without hollywood being able to stop it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jun 2016 @ 9:14am

      Re: Telecom Armageddon

      Agree, this fits in with Anti-Trust law.

      There is a clear conflict of interest if they serve content along with the connection to access them.

      Also, signing contracts and deals with content so that only say... Netflix can have it like with Disney should be equally anti-trust actionable.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jun 2016 @ 9:48am

    so, it's really only the 'friends of the Telecoms companies', those being all members of Congress who are paid a nice little amount in campaign contributions, that stand in the way now. i bet they'll be up in arms now, accusing the FCC of all sorts of wrong doings, while they are actually the wrong doers themselves! what a shame that USA political members has far more power than the law!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jun 2016 @ 12:02pm

    Karl, go ahead, speculate for us

    Okay another court ruling favoring the F.C.C..

    Speculate for us. What or how do you see the F.C.C. utilizing this win to help consumers?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 14 Jun 2016 @ 2:43pm

      Re: Karl, go ahead, speculate for us

      A large part of that depends on congress letting them instead of tripping over their own feet to do a few 'favors' for their buddies in the cable companies. If the FCC has it's funding gutted for example and is explicitly told to stay out of the business(of screwing over their customers) of the ISP's, then rules or not there's not much they'll be able to do.

      reply to this | link to this | view in chronology ]

  • identicon
    spodula, 15 Jun 2016 @ 12:32am

    served its purpose.

    Months and Months of delay while this case was winding its way through the courts, and still a possible appeal, which i expect despite there being little to no legal basis.

    Now, i think it would be a stretch for them to be able to delay the appeal for another year and a half, but they have some good lawyers and if they can find a way, they will.

    Then Either Hillary or Trump will make the problem magically go away.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jun 2016 @ 5:15am

      Re: served its purpose.

      Both of them would be fucking idiots to do so.

      But everybody expects the stupid from Trump, so its more 'how badly are the republicans willing to stall for another 4 years?'

      reply to this | link to this | view in chronology ]

      • identicon
        spodula, 15 Jun 2016 @ 7:47am

        Re: Re: served its purpose.

        Actually, i expect a certain amount of stupid from both of them. However, I think the guiding principle in this case is going to be lobbying pressure.

        The one advantage Trump has over Clinton in that regard is at least he isn't beholden to them financially.

        reply to this | link to this | view in chronology ]


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