- Henry Park
FCC Net Neutrality Survives
Yesterday, the Court of Appeals for the District of Columbia Circuit, ruled 2-1 that the Federal Communication Commission's 2015 Open Internet Order which reclassified broadband interent service as a telecommunications service was valid. See U.S. Telecom Assoc. v. FCC, Case No. 15-1063 (June 14, 2016) (hosted on Mega.nz). The Open Internet Order forces broadband providers to treat all internet traffic the same -- colloquially known as net neutrality. For consumers, it means that their broadband service provider cannot (1) block access to legal content, applications, services, or non-harmful devices; (2) throttle internet traffic -- impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices; and/or (3) favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind -- no paid prioritization. For broadband service providers, it means (a) they are no longer considered an information service but a telecommunications service and are subject to Title II common carrier obligations, and (b) they are subject to some Title II provisions. Interestingly, the dissent was not a full disagreement with the ruling but, potentially a full agreement that the FCC could reclassify broadband service as a telecommunication service.
I agree with the majority that the Commission’s reclassification of broadband internet as a telecommunications service may not run afoul of any statutory dictate in the Telecommunications Act.
Opinion at Dissent p.4. The likely next step is an appeal by broadband providers to the full bench of the D.C. Circuit Court of Appeals, and a potential appeal to the U.S. Supreme Court. If this decision stands after appeals, then broadband service providers will need to comply with the regulations that govern telecommunications companies. Although the FCC will likely grant broadband providers a grace period to comply, they should begin planning how to comply with such regulations.