A federal court on Tuesday upheld “net neutrality” regulations passed by the Federal Communications Commission last year. The court ruled, in part, that because providers are not understood by consumers to “speak,” they did not enjoy First Amendment protections.
The decision from the D.C. Circuit Court of Appeals upholds the FCC’s massive classification of broadband providers as public utilities, which came under the “Open Internet Order” passed by the commission last year. It also leaves those providers subject to FCC regulation, a major victory for the Obama administration.
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The decision was authored by Judges David Tatel and Sri Srinivasan, the latter of whom has been mentioned as a potential future Democratic nominee for the Supreme Court. The two denied a spectrum of arguments made by petitioners, which ranged from procedural to substantive and constitutional. A third judge, Reagan-appointee Stephen Williams, concurred in part and dissented in part.
A victory for consumers & innovators! Court upholds Open Internet Order. No blocking, throttling or fast lanes online. #netneutrality
— Tom Wheeler (@TomWheelerFCC) June 14, 2016
Democrats hailed the ruling. “It ensures the Internet remains a platform for unparalleled innovation, free expression and economic growth,” Democratic FCC Chairman Tom Wheeler said in a statement. “After a decade of debate and legal battles, today’s ruling affirms the Commission’s ability to enforce the strongest possible Internet protections — both on fixed and mobile networks — that will ensure the Internet remains open, now and in the future.”
Petitioners challenging the rules, which included a range of nonprofits, telecommunication providers, and trade groups, argued that the FCC exceeded its authority by trying to dictate the level of service broadband providers are required to offer consumers. The commission has argued it is trying to prohibit the “blocking” or “throttling” of traffic by preventing providers from offering tiered service at different prices.
One argument involved a constitutional critique that the rules violated the First Amendment by prohibiting providers from blocking any content on the Web. Srinivasan and Tatel said the argument didn’t hold any weight, because broadband providers were not generally exercising their First Amendment rights.
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“But nothing about affording indiscriminate access to Internet content suggests that the broadband provider agrees with the content an end user happens to access. 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 pair wrote.
Republicans said the rules were going to squeeze out competition and grant monopoly status to established companies. “The ultimate irony of the commission’s unreasoned patchwork is that, refusing to inquire into competitive conditions, it shunts broadband service onto the legal track suited to natural monopolies,” said Republican FCC Commissioner Ajit Pai. “Because that track provides little economic space for new firms seeking market entry or relatively small firms seeking expansion through innovations in business models or in technology, the Commission’s decision has a decent chance of bringing about the conditions under which some of its actions could be grounded — the prevalence of incurable monopoly.”
A few of the groups that challenged the rules included the U.S. Telecom Association, Alamo Broadband and TechFreedom. The groups are expected to appeal the ruling to the Supreme Court.
