The Washington DC appeals court has upheld the decision by federal regulator FCC to reverse net neutrality rules but said it does not have the right to stop US states from adopting their own rules.
The mixed decision [PDF], released on Tuesday morning, has provoked a familiar response, with both sides claiming victory while disparaging the other. Even the DC Court of Appeals, having ruled repeatedly on the same topic, has grown tired of the debate.
“Today’s litigation represent[s] yet another iteration of a long-running debate regarding the regulation of the Internet,” the judges wearily noted. “We rehearsed much of this complex history [before], and see no need to recapitulate here what was so well and thoroughly said there.”
The decision is a victory for the current FCC Republican majority in that it upheld its decision in 2017 to reverse the previous Democrat majority’s decision in 2015 to declare internet providers as “common carriers” on a par with telephone companies.
The court did not so much support the FCC’s reversal decision however as repeat, again, that the federal regulator should be allowed to decide for itself how it applies relevant laws to areas in its jurisdiction. In other words, a federal regulator should be allowed to do its job and, absent specific legislation, it is not the court’s place to micromanage what rules are put in place.
It accepted the FCC’s argument that requiring ISPs to be transparent about what they do with internet content is sufficient of a consumer safeguard against possible abuse by service providers.
Sigh. This again?
But the court also signaled its despair at how that regulator has repeatedly flip-flopped on the same issue, to the detriment of stable governance over critical telecoms infrastructure. In a brief synopsis, the court’s judgment notes that “once again, the Commission has switched its tack” when talking about the most recent decision.
While it supported the FCC's right to decide how internet access is viewed within law - something that FCC chair Ajit Pai immediately declared to be “a victory for consumers, broadband deployment, and the free and open Internet” - the court also slapped down the FCC’s efforts to declare itself the sole authority on all things internet.
The FCC claimed that its rules overruled any subsequent state law over internet access - something that the court said was overstepping its authority. The tension between state and federal authorities remains and in this case, with California having already passed strong net neutrality rules, it means that the American argument over internet access is far from decided.
The court also picked the FCC up on a number of smaller points: it said the agency had “(1)... failed to examine the implications of its decisions for public safety; (2) … not sufficiently explained what reclassification will mean for regulation of pole attachments; and (3)... not adequately addressed Petitioners’ concerns about the effects of broadband reclassification on the Lifeline Program. “
That dry language points to some serious concerns. By reversing the previous rules, the FCC left the door open to ISPs throttling or blocking specific content and the court is understandably concerned about the impact of that in the event of a public safety crisis. The FCC will need to change its rules to account for that.
Likewise the impact on low-income consumers who can receive subsidized internet access through the FCC’s Lifeline program. And then, gently hinting that the reversal was rushed and poorly thought through, it slams the FCC for its “scattered and unreasoned observations” when it comes to the possible impact on broadband rollout of the rule reversal.
Talking out his Pai-hole
With tedious inevitability, the FCC’s Pai used his statement on the decision to make inaccurate claims about the impact of the reversal. “Since we adopted the Restoring Internet Freedom Order, consumers have seen 40 per cent faster speeds and millions more Americans have gained access to the Internet,” he stated. The claim doesn’t hold up to even cursory examination.
Pai also sought to diminish the court’s insistence that it review the rules to account for public safety, low-income consumers and broadband provision as “narrow issues” and completely ignored the fact that the court had undercut its effort to “win” the debate by declaring its rules as overriding any state laws.
Under Pai, the FCC has grown increasingly partisan to the extent that the FCC’s traditional policymaking processes have been largely abandoned in favor of pre-decided outcomes.
The flipside of the argument within the FCC came from commissioner Jessica Rosenworcel who said in her own statement that the 2017 reversal was “on the wrong side of the American people and the wrong side of history” and that the decision today showed that “the agency also got it wrong on the law.”
And she noted that the issue was far from over and would now head to state legislatures. “From small towns to big cities, from state houses to governors’ executive actions, states and localities have been stepping in because the FCC shirked its duties,” she said.
As for the company that brought the legal action, open-source software developer Mozilla, its chief legal officer Amy Keating had this to say:
"Our fight to preserve net neutrality as a fundamental digital right is far from over. We are encouraged to see the Court free states to enact net neutrality rules that protect consumers. We are considering our next steps in the litigation around the FCC’s 2018 Order, and are grateful to be a part of a broad community pressing for net neutrality protections in courts, states and in Congress."
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And then, of course, there have been hundreds of other people weighing in, alternatively claiming glorious victory and yelling insults at those on the other side of the debate. There’s little point in highlighting any - the arguments have been hashed and rehashed dozens of times.
In short, the rules stand - as most expected. But states can make their own if they aren’t happy. And they will. It may reach a point where the issue is effectively decided for the FCC by state action in response to consumer concern. Or it may end up as yet another policy stalemate, determined more by partisan consideration than informed policy discussion.
Or Congress may finally get its act together and write a communications law that will bring the US up-to-date with modern digital technologies. Or, as the administration changes, a Democratic FCC majority may reverse the reversal of the reversal.
But one thing is for certain: arguments over net neutrality are here to stay. ®