Tougher Internet Regulation Under Net Neutrality Upheld

     (CN) — The D.C. Circuit upheld net-neutrality rules Tuesday that allow regulators to treat broadband providers like utilities, holding them to tighter standards.
     Though the Washington-based federal appeals court struck down similar rules two years ago, the Federal Communication Commission bolstered its revised rules with the 2015 Open Internet Order in which it reclassified broadband service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act.
     The FCC’s first stab at net neutrality suffered under its 2002 classification of broadband internet as an “information service,” rather tan as a “common carrier” like a phone company or other utility, except as to the extent it is involved in telecommunications.
     Last year’s Open Internet Order came after an attempt as less regulation triggered a huge public outcry.
     The FCC received nearly 4 million public comments after Chairman Tom Wheeler floated the idea of allowing companies like Netflix and Google to pay Internet providers for special, faster lanes to send video and other content to their customers.
     President Barack Obama even took the rare step of expressing his opinion on the matter.
     Taking these comments to heart, Wheeler fashioned a proposal that would reclassify ISPs as common carriers, subject to FCC regulation, and impose three “bright line” rules: no blocking of access to legal content, no throttling of Internet traffic, and no paid prioritization favoring some websites over others.
     The FCC approved the new rules in a 3-2 vote last year.
     This time around, the D.C. Circuit found that the commission has the statutory authority to reclassify broadband as a telecommunications service, thereby granting the agency regulatory authority.
     With two authors, Judges David Tatel and Sri Srinivasan, today’s 115-page opinion on the case is exceedingly rare.
     “Congress expressly delegated to the Commission the authority to define – and hence necessarily to update and revise – those categories’ key definitional components, ‘public switched network’ and ‘interconnected service,'” the judges said.
     Broadband providers contesting the rule had claimed that their service could never be reclassified from an information service to a telecommunications service, but the opinions says “nothing in the statute compels attributing to Congress such a wooden, counterintuitive understanding of those categories.”
     Srinivasan and Tatel also rejected the providers’ First Amendment claims.
     “Nothing about affording indiscriminate access to internet content suggests that the broadband provider agrees with the content an end user happens to access,” the judges said. “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.”
     Judge Stephen Williams partial dissent says the commission had limited data to support its decision. While Williams agreed that the commission had the authority to make the reclassification, he found the decision arbitrary and capricious.
     “Given the commission’s assertions elsewhere that competition is limited, and its lack of economic analysis on either the forbearance issue or the Title II classification, the combined decisions to reclassify and forbear – and to assume sufficient competition as well as a lack of it – are arbitrary and capricious,” the 69-page dissent states. “The commission acts like a bicyclist who rides now on the sidewalk, now the street, as personal convenience dictates.”

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