The courts and net neutrality

Last Friday, the FCC’s net neutrally rules officially went into effect. That’s because, last Thursday, the U.S. Court of Appeals for the D.C. Circuit denied a motion to halt the rules, with a three-judge panel noting that “petitioners have not satisfied the stringent requirements for a stay pending court review.”

This doesn’t mean the rules are in the clear. Several lawsuits are pending, but while the rules could still be found to violate the law in the future, the U.S. Court of Appeals decision was an important one.

Critics of net neutrality were disappointed, though, in most cases, not surprised by the court’s judgment. Ajit Pai, one of the two FCC commissioners to vote agains the rules and the most outspoken commissioner of the pair, tried to find the silver lining in the decision:

Because President Obama’s plan to regulate the Internet is already harming broadband investment and deployment, I am pleased that the D.C. Circuit will be hearing the appeal of President Obama’s plan on an expedited basis. Although I am disappointed that the court did not stay the rules pending its review, this development was not unexpected. The bar for granting any stay is quite high, and I am pleased that the court did not suggest that the rules are in fact legally valid. I welcome the court’s coming examination of the FCC’s 313-page order, during which it will have an opportunity to address the order’s serious procedural and substantive flaws.

Pai’s fellow nay vote, FCC Commissioner Michael O’Rielly, vowed defiance and argued that “unless eradicated they will ultimately harm the foundations of the Internet, and limit its possibilities. In the meantime, I will be vigilant in resisting any attempts by the agency to act as a referee enforcing rules known to none of the players and made up along the way.” The rules originally passed the FCC by a 3-2 margin, with Pai and O’Rielly voting against.

Supporters of net neutrality including FCC Chairman Tom Wheeler, Capitol Hill Democrats, and others applauded the court’s decision. Congresswoman Anna G. Eshoo, D-Calif., the ranking member of the Communications and Technology Subcommittee, released the following statement

On June 12th millions of Americans will receive what they’ve long asked for: effective, enforceable net neutrality protections to keep the Internet free and open. The Court’s decision today is a critical validation that the new rules to protect an open Internet are grounded in strong legal footing and can endure future challenges by broadband providers. Millions of consumers, entrepreneurs, innovators and others stand by this, and today the Court agreed with them.

The FCC Chairman, who has come under fire for his support of net neutrality rules, was effusive in his praise of the court’s decision:

This is a huge victory for Internet consumers and innovators! Starting Friday, there will be a referee on the field to keep the Internet fast, fair and open. Blocking, throttling, pay-for-priority fast lanes and other efforts to come between consumers and the Internet are now things of the past. The rules also give broadband providers the certainty and economic incentive to build fast and competitive broadband networks.

But this all may be premature. Seven lawsuits, three petitions, and a protracted congressional fight still stand waiting in the wings for net neutrality’s strongest supporters. Opponents plan to use the appropriations process to prevent implementation of the rules, including a rider that would prevent the rules from being put into practice until the court cases are finished.

Last Thursday, the House Financial Services Subcommittee approved an appropriations bill that would have cut the FCC’s budget along with the riders preventing net neutrality rules from going into effect, a move that Eshoo and House Energy and Commerce Committee ranking member Frank Pallone, Jr. strongly criticized as both politically driven and operationally dangerous.

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