from the pop-the-bubbly dept After months of anticipation on all sides, the U.S. Court of Appeals for the D.C. Circuit has upheld the FCC’s Open Internet Order, a notably huge win for net neutrality advocates. The full court ruling (pdf) supports the FCC’s arguments across the board, including the FCC’s decision to classify internet providers as common carriers under Title II of the Communications Act. That’s not only big for net neutrality, but it solidifies the FCC’s authority as it looks to move forward on other pro-consumer initiatives such as the exploration of some relatively basic new privacy protections for broadband users.
Historically the DC Appeals court has been a mixed bag for the FCC, but in this instance the court declared the FCC’s neutrality protections rest on solid legal ground from beginning to end, dismantling arguments by the likes of US Telecom, AT&T, and advocacy groups like TechFreedom from stem to stern. That includes industry attempts to prevent the rules from being applied to wireless networks (a split decision whereby fixed-line services were covered by wireless was not was something that had worried many telecom sector consumer advocates). The court also repeatedly shot down ISP claims that the rules somehow violate their First Amendment rights:
“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 court also fully supports the FCC’s contention that thanks to limited competition, broadband providers have plenty of incentive to act anti-competitively against “edge” providers like Netflix, and that this threat required FCC action:
“We also determined that the Commission had “adequately supported and explained its conclusion that, absent rules such as those set forth in the [2010 Open Internet Order], broadband providers represent[ed] a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.” Id.at 645. For example, the Commission noted that “broadband providers like AT&T and Time Warner have acknowledged that online video aggregators such as Netflix and Hulu compete directly with their own core video subscription service,” id.,and that, even absent direct competition, “[b]roadband providers… have powerful incentives to accept fees from edge providers, either in return for excluding their competitors or for granting them prioritized access to end users,” id.at 645–46.
While a huge win for net neutrality fans everywhere, it’s important to understand that the open internet isn’t out of the woods yet. The fight could still stumble its way to the Supreme Court. The Presidential election could similarly culminate in a total dismantling of the current FCC and a restocking of the agency with ISP-allies eager to roll back the protections — as well as the myriad other efforts the FCC’s currently engaged in (cable set top box reform).
And as we’ve noted a few times zero rating and usage caps also play a huge role in determining what constitutes a…