In a 2-1 decision, the D.C. Circuit Court has upheld the legal authority behind the FCC’s 2015 Open Internet Order (commonly known as “net neutrality”), finding that the agency’s reclassification of fixed and mobile broadband Internet access services as “telecommunications” was lawfully permissible and consistent with its authority under the Telecommunications Act of 1996.
The petitioners—mostly broadband providers and their respective industry associations—had claimed that the FCC’s order was implemented with a lack of authority and in an arbitrary manner, and that such a decision raised certain procedural, statutory, and First Amendment issues. The D.C. Circuit disagreed, however, finding that the FCC had properly opened its Order and rule-making procedure to a lengthy period of notice-and-comment, and that it subsequently used these comments to craft a classification of broadband Internet access services in a manner that was consistent with prior Supreme Court precedent and “end-user understandings.”
In its decision, the D.C. Circuit noted that the FCC was permitted to take into consideration the end-user’s perspective in classifying a service as being either a “telecommunications service” or an “information service,” and that the FCC had extensive support in the record proving that “end users view broadband service as a mechanism to transmit data of their own choosing to their desired destination—i.e., as a telecommunications service.” This was further supported, the Court said, by the general language of broadband advertisements, which as a group showed that broadband Internet access service is “marketed today primarily as a conduit for the transmission of data across the Internet,” a core telecommunications-based service.
The D.C. Circuit Court has traditionally been a difficult venue for the FCC, as it has struck down a number of previous net neutrality measures. Here, however, the agency prevailed, convincing the Court to not only uphold its reclassification of broadband Internet access services, but also its open Internet rules, which include bans on blocking, throttling, and paid prioritization of Edge providers, a prohibition against broadband providers from unreasonably interfering with end-user application/content choices, and a new transparency rule. Even the Court’s third member, Judge Stephen Williams, partially concurred in the matter, agreeing with the majority that the FCC’s classification was statutorily lawful but dissenting due to his belief that the FCC’s reclassification decision did not follow the proper decision-making process. Based on reports from other news sources, there is evidence that a Supreme Court appeal will follow.
The decision is entitled United States Telecom Association v. Federal Communications Commission, No. 15-1063.