D.C. Court Rules Against FCC on Net Neutrality

Last week the D.C. Court of Appeals issued its ruling in the much talked about net neutrality case between Verizon and the Federal Communications Commission (FCC).  I’ll cut to the chase—the Court struck down the FCC’s “Open Internet Order,” also known as “net neutrality.”

Now for a little background, starting with some definitions (paraphrased from the Court’s opinion).

  • “Broadband Providers,” also known as Internet Service Providers or “ISPs,” are high-speed communication providers that may offer content applications services that compete with edge users.
  • “Edge Users” are those who provide content, services, and applications over the Internet.
  • “End Users” are those who consume the content, services, and applications provided by edge users.

With this in mind we can now get down to the meaning of “net neutrality” and what the fight is really about.  The FCC’s Open Internet Order would have prohibited broadband providers from “block[ing] lawful content, applications, services, or non-harmful devices, subject to reasonable network management,” a concept which has come to be known as “net neutrality” because it effectively enforces non-discriminatory practices against certain content providers.

It was over such regulatory practices that Verizon took the FCC to court—a battle that ended in the D.C. Court of Appeals striking down the Open Internet Order, and inspiring many people to claim that net neutrality is “dead.”

But, as Jeremy Byellin of Thomson Reuters blog explains, it may be more accurate to say that “net neutrality has been knocked unconscious,” because the FCC is free to make the necessary administrative changes to net neutrality in order for the concept to be permissibly enforced in the future.

Moving onto the Court’s opinion, the Court begins by acknowledging the FCC’s general authority to regulate how broadband providers treat edge providers.  Specifically, under Section 706 of the Telecommunications Act of 1996, the FCC has been vested with the “affirmative authority to enact measures encouraging the deployment of broadband infrastructure” and the power to “promulgate rules governing broadband providers’ treatment of Internet traffic.”

So what’s the problem?  Although the FCC is empowered with seemingly broad authority over regulating broadband infrastructure, the Court made it clear that it is not permitted to contravene statutory mandates.

The issue lies with the FCC’s classification of broadband providers as providers of “information services” rather than “telecommunication services” (a classification that dates back to 2002).  The inclusion of a non-discrimination provision meant the FCC was effectively treating broadband providers as “common carriers.”  This, the Court explained, was in direct contravention with 47 U.S.C. §153(51), which states: “a telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”  (In other words, “information services” cannot be treated as “common carriers.”)

Here’s the full opinion.

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One Response to “D.C. Court Rules Against FCC on Net Neutrality”

  1. […] authority was not well defined.  However, as Marguerite Reardon explains, that all changed when the D.C. court handed down its net neutrality opinion a few weeks ago.  Now: “[T]he FCC and even local public utility commissions can . . . impose […]

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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