Court Upholds Net Neutrality Rules, Now FCC Must Enforce Them

Washington, D.C. Appeals Court upheld FCC’s “Open Internet Order” rules, also called the net neutrality rules, which the agency passed last year with much support from the public.

As soon as the net neutrality rules passed last year, AT&T, the U.S. Telecom Association, and other broadband provider advocacy groups sued the Federal Communications Commission (FCC) over these new rules, hoping to invalidate them. However, in a 2-1 decision, the Court of Appeals for the D.C. Circuit ended up supporting the FCC’s new rules across the board, including the agency’s decision to classify internet providers as “common carriers" under Title II of the Communications Act.

The "common carriers" bit means that the FCC will now have even more flexibility to impose new regulations on internet providers to ensure that they aren't taking advantage of their customers. It can also help with new privacy framework that the FCC has been planning to pass.

Previously, the courts denied the FCC permission to impose certain regulations on broadband providers because the FCC didn’t have the statutory authority to do so after classifying them as “information services” under the Communications Act of 1934.

According to the court, this meant that the FCC had no authority to impose anti-blocking and anti-discrimination requirements on the broadband providers. However, under the new net neutrality rules, the FCC reclassified the broadband providers as “common carriers,” which means the agency now has the necessary authority to regulate internet providers over blocking and discriminatory practices.

One of the ways in which the ISPs challenged the FCC’s rules is by citing First Amendment rights. The Court rejected this theory, saying that normally, customers don’t think of their ISPs are “speaking” themselves when they use their service.

"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," said the court.

The Court also recognized that without such rules, and given the context that ISPs don’t have much competition either locally or nationally, they could use their power to force edge providers such as Netflix or the New York Times to pay for access to their customers or for granting them “prioritized access.”

The prioritized access has been one of the main issues with the lack of net neutrality rules, because it could also eliminate competition among edge providers. Netflix, YouTube or Facebook may have enough money to pay the broadband providers whatever fees they may request, but other new competing startups may not.

That means that in the long term, internet users would have limited choice not just in broadband providers, but also in edge providers, which could perpetuate the dominance of these services through such partnerships with the broadband providers.

Zero rating is tied to prioritized access because it could also be used in the same way to discriminate against certain web services providers. However, the FCC doesn’t even address this in its Open Internet Order, because at the time it thought the issue was still controversial and it didn’t want to outright ban it.

As for the other rules, it’s now up to the FCC to properly enforce them. The new ruling by the D.C. Appeals Court should provide some clarity for how both the FCC and the broadband providers should proceed. However, it’s likely that the broadband providers that have already sued the FCC will try to get this case to the Supreme Court.

Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu. 

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