D.C. Appeals Court Overturns Key Parts Of FCC Net Neutrality Rules
January 14, 2014 at 11:54 AM (PT)
The U.S. Court of Appeals for the DISTRICT OF COLUMBIA has overturned key provisions of the FCC's net neutrality rules, deciding that while the Commission has the authority to regulate Internet service providers, the specific regulations regarding Internet traffic discrimination and blocking exceed the agency's authority.
In the ruling, the court struck down the rules prohibiting Internet service providers from treating some traffic differently from other traffic, saying that the rules treat cable broadband ISPs as common carriers although the Commission has otherwise chosen not to regulate ISPs in that manner. "Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order," the ruling, written by Circuit Judge DAVID S. TATEL, states.
The ruling does uphold the Commission's power to "promulgate rules governing broadband providers’ treatment of Internet traffic," and upholds the Commission's justification for the rules ("that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet") as "reasonable and supported by substantial evidence." And the court noted that "a broadband provider like COMCAST might limit its end-user subscribers’ ability to access the NEW YORK TIMES website if it wanted to spike traffic to its own news website, or it might degrade the quality of the connection to a search website like Bing if a competitor like GOOGLE paid for prioritized access. But the Commission's move to exempt cable broadband ISPs from Title II regulation, the court reasoned, means that the Commission cannot regulate traffic as if the cable ISPs were common carriers, and, the court added, "We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers," which it concluded that the anti-discrimination and anti-blocking rules do.
FCC Chairman TOM WHEELER responded, "The D.C. Circuit has correctly held that ‘Section 706 . . . vests [the Commission] with affirmative authority to enact measures encouraging the deployment of broadband infrastructure’ and therefore may ‘promulgate rules governing broadband providers’ treatment of Internet traffic.’ I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products,
and channels for all forms of speech protected by the First Amendment. We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans."
Commissioner AJIT PAI said, "For the second time in four years, the D.C. Circuit has ruled that the FCC exceeded its authority in attempting to regulate the Internet. It is time for the Commission to take no for an answer. Unless Congress acts, we should stay our hand and refrain from any further attempt to micromanage how broadband providers run their networks. We should focus on removing regulatory barriers to broadband deployment, not imposing unnecessary rules that chill infrastructure investment."
Commissioner MICHAEL O'RIELLY said, "Once again, the D.C. Circuit has confirmed that the Commission’s authority to regulate is not boundless. Rather than continue to test those boundaries with “prophylactic” regulations, the Commission should look for ways to remove regulatory obstacles to the broadband innovation and investment that will benefit all consumers."
Commissioner MIGNON CLYBURN said, "We must ensure that consumers do not become casualties in our efforts to balance competing interests. Our actions should preserve consumer access to content of their choice, and our policies should advance competition, investment and innovation. The FCC’s public interest obligation requires us to seek solutions that are guided by these principles. I look forward to working with Chairman WHEELER on next steps.”
And Commissioner JESSICA ROSENWORCEL said, "I support an open Internet that drives innovation, experimentation, and economic growth. I am pleased that the D.C. Circuit recognized the Commission’s authority to encourage the deployment of broadband infrastructure. I look forward to further studying the court’s opinion and working with my colleagues to ensure that the great ecosystem the Internet supports continues to create jobs, opportunity, and digital age prosperity. ”