March 17, 2018

Court Strikes Down FCC’s Net Neutrality Mandate

In a ruling that could have serious implications for the way Internet access is regulated in the United States, the Washington, D.C. Circuit Court of Appeals ruled this morning that the Federal Communications Commission (FCC) does not have the authority to impose so-called ‘net neutrality’ rules on Internet service providers (ISPs).

This morning’s ruling finds that the FCC overstepped its bounds as a regulator in putting those rules in place. If the ruling stands, it would open the door for ISPs to work with content providers to provide faster access to their content, creating what some worry could become a two-tier Internet, with large providers who can afford to pay for preferential treatment forming a top tier while other online resources make do with leftover bandwidth.

Released this morning, the 81-page decision represents a 2-1 ruling by the three judge court of appeals. The key part of the decision comes on page 4:

That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. 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.

Under the now-invalid order, the FCC had established three basic rules for the maintenance of an open Internet—a requirement of transparency in how ISPs manage their networks, and rules stating that no ISP could block lawful content or discriminate in how they presented that content. Functionally, those rules meant that even though they were not defined as such, ISPs were held to a standard very similar to common carrier companies.Such companies, which provide a public good service—like airlines and phone companies— are prohibited from discriminating in how they provide that service.

Verizon appealed the rules. Today, the appellate court sided with Verizon, striking down the rules against blocking and discrimination, while leaving in place the order that ISPs must be transparent about how they make those data management decisions.

The FCC’s rules were meant to ensure that the Internet remain a level playing field for content providers, preventing ISPs from, for example, showing one preferred website over a swift connection, while bringing up a competitor’s site more slowly.

“When you call Pizza Hut, you don’t expect to get cut off because the phone service has cut a deal with Papa John’s,” ACLU senior policy analyst Jay Stanley told Library Journal. “We could start to see those kinds of shenanigans on the Internet.”

Such problems, Stanley said, could have been avoided if the FCC had initially defined ISPs as telecommunications companies under the provisions of the 1996 Telecommunications Act. That would have made ISPs subject to common carrier rules. “The common carrier regime has showed itself to be a robust means of dealing with a variety of abuse for over a century,” said Stanley.

Many abuses potentially allowed by the D.C. court’s ruling that concern librarians. “The American Library Association is extremely disappointed with today’s decision by the D.C. Circuit Court of Appeals to strike down the FCC’s “Net Neutrality” decision,” American Library Association (ALA) President Barbara Stripling said in a statement. “Now that the Internet has become the primary mechanism for delivering information, services, and applications to the general public, it is especially important that commercial Internet Service Providers are not able to control or manipulate the content of these communications.” (Stripling’s full statement and those of others are available on Infodocket.)

ALA director of government relations Lynne Bradley told Library Journal that open and equitable Internet access is a core value of libraries, reflecting their mission of free access to information for all. New policies that could be put in place in the absence of open Internet rules could drive up libraries’ (and consumers’) costs for comparable Internet access, Bradley said, and drive ISPs to prioritize the flow of entertainment content from partner companies, while devoting less bandwidth and resources to educational content. “We don’t want to see people limited by preferential treatment given to those who can pay more,” Bradley said. Without rules governing net neutrality in place, said Stanley, it’s even possible that telecommunications companies could slow down the websites of political parties their executives disagree with.

In addition, trying to figure out which ISP provides the best access to materials important to each library’s patrons could become a challenge to library staff’s time and expertise.

In a statement, FCC Chairman Tom Wheeler said that the FCC will fight the court’s decision. “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.”

ALA will continue to be an advocate during that process, Bradley told Library Journal. “Libraries in general have to find some glimmer of hope at the end of the tunnel,” she said. “We have to pick ourselves up and seek out what we really want, which is an open Internet.”

UPDATE: The Association of Research Libraries (ARL) has also weighed in on the court decision. In a statement, ARL President Carol Pitts Diedrichs said “The intellectual freedom that libraries, colleges, and universities have long championed would be threatened if network operators act as gatekeepers, bar access to competing or nonprofit voices, or relegate unpopular or non-commercial expression to the Internet’s slow lanes. We look forward to working with the FCC in considering the avenues available to ensure effective network neutrality and open Internet rules going forward.”

Ian Chant About Ian Chant

Ian Chant is a former editor at LJ and a freelance journalist whose work has appeared in Scientific American and Popular Mechanics and on NPR.