Net Neutrality Rules Stand -- for Now

By William Vogeler, Esq. on May 01, 2017 | Last updated on March 21, 2019

A federal appeals court let stand a decision upholding net neutrality rules, staying the course in a three-way race among internet service providers, government and consumers over the fate of the controversial rules.

The U.S. Court of Appeals for the District of Columbia refused to rehear last year's ruling, which held that internet service providers were common carriers and could not regulate internet traffic. The decisions are a setback to ISPs that sued the Federal Communications Commission, but the court pointed out that the contest over net neutrality is far from over.

"The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one," the appeals court said in United States Telecom Association v. FCC. "In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement."

Good News or Bad News?

FCC Chairman Ajit Pai said the latest court decision was good news -- even as he plans to repeal the last Administration's net neutrality rules at issue in the case.

"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," he said.

Meanwhile, the plaintiffs and amici -- including telecom and broadband giants -- are deciding whether to petition the U.S. Supreme Court. USTelecom CEO Jonathan Spalter said they are weighing their options.

"We will continue to review our legal options going forward to fully protect our open internet, and to connect all Americans to the promise and potential of broadband," he said.

Too Little, Too Late?

ArsTechnica, a tech website and retailer, headlined the court decision as "too little, too late." It reported that consumer groups see the ruling as a victory for them, but showed that the issue is headed for deeper waters.

"The DC Circuit has once again confirmed that the FCC's Open Internet rules are lawful and supported by the evidence," Public Knowledge Senior Counsel John Bergmayer said. "Now, the primary threat to these important consumer protections is FCC Chairman Pai's determination to roll them back and to hand more power to monopolistic Internet access providers."

The court acknowledged the challenge facing the FCC, noting that "the agency must carry out its authority in a reasonable and non-arbitrary way." Ars foreshadowed a storm ahead.

"Defenders of the current rules, now upheld, will undoubtedly challenge any reclassification as arbitrary and capricious, since they are motivated not by changed circumstances, but purely by partisanship and ideology," said Michael Calabrese, director of the Wireless Future Program at New America's Open Technology Institute.

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