D.C. Circuit Won’t Reconsider Net Neutrality Ruling

WASHINGTON (CN) – The D.C. Circuit said Monday it won’t reconsider its ruling to uphold federal net neutrality rules that require internet service providers to treat all online traffic equally.

The 109-page ruling comes just days after newly-appointed Federal Communications Chairman Ajit Pai said he intends to scrap the rules, which have long been a point of contention between consumer groups and telecommunication companies.

Last year, a divided three-judge panel upheld the regulations, and the 2-1 ruling was seen as a win for the Obama administration and consumers.

But Comcast, Verizon, AT&T and other industry groups said the rules threaten innovation and undermine their investment in broadband infrastructure. They asked the full D.C. Circuit to take another look at the earlier ruling.

On Monday, eight judges on the court declined. Two judges dissented.

“If a bookstore (or Amazon) decides to carry all books, may the Government then force the bookstore (or Amazon) to feature and promote all books in the same manner? If a newsstand carries all newspapers, may the Government force the newsstand to display all newspapers in the same way? May the Government force the newsstand to price them all equally? Of course not,” wrote U.S. Circuit Judge Srikanth Srinivasan, for the court majority.

“There is no such theory of the First Amendment.  Here, either Internet service providers have a right to exercise editorial discretion, or they do not. If they have a right to exercise editorial discretion, the choice of whether and how to exercise that editorial discretion is up to them, not up to the Government, ” Srinivasan said.

U.S. Circuit Judge David Tatel joined the majority with a concurring opinion.

But Monday’s ruling is hardly the end of the story. The new FCC chairman has been vocal critic of the Obama-era rules and on Monday, he appeared to be unbowed by the court’s opinion.

In a written statement Pai said he agreed with many of the reasons behind the court’s ruling, but he did not appear deterred by it.

“In light of the fact that the commission on May 18 will begin the process of repealing the FCC’s Title II regulations, it is not surprising as Judges Srinivasan and Tatel pointed out, that the D.C. Circuit would decide not to grant the petitions for hearing en banc,” Pai said. “Their opinion is important going forward, however, because it makes clear that the FCC has the authority to classify broadband internet access service as an information service, as I have proposed to do.”

But Judge Srinvasan clearly believes that approach is wrong-headed.

“Think about what the FCC is saying: under the rule, you supposedly can exercise your editorial discretion to refuse to carry some Internet content. But if you choose to carry most or all Internet content, you cannot exercise your editorial discretion to favor some content over other content. What First Amendment case or principle supports that theory? Crickets,” he wrote.

Lee Rowland, a staff attorney for the American Civil Liberties Union said Monday that the organization applauds the D.C. Circuit for “reaffirming its earlier, correct holding that the Open Internet Order is lawful.”

“The ACLU firmly believes that net neutrality is essential to protecting the free speech rights of the countless individual users who depend on internet service providers to access the full world of online content,” Rowland said.

Currently, net neutrality rules prohibit “fast lanes” for providers who want to charge consumers more for quicker video and data services.  The rules also stop a company like Verizon, which streams its own video services, from slowing download speeds for video service providers like Netflix.

According to an agenda on the FCC’s website, the commission’s May 18 meeting will delve into a number of proposals to shake up the existing regulatory framework for the Internet and broadcasting.

These include deregulating the broadcast specifications for satellites and reviewing the rules applied on rural telecom providers.

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