Washington was quick to weigh in on the latest news in the multi-front debate/battle over Open Internet rules—that was the U.S. Court of Appeals for the D.C. Circuit decision not to review a three-judge panel of that court's decision that the FCC was within its authority to reclassify ISPs as common carriers after years of treating them as information services rather than telecoms.
While one of the court's reasons was that the FCC, under new chairman Ajit Pai, is voting this month on a proposal to reverse that FCC decision and reclassify them as information services, some Title II fans were claiming it as a victory.
“The D.C. Circuit has once again confirmed that the FCC's Open Internet rules are lawful and supported by the evidence," said Public Knowledge senior counsel John Bergmayer. "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.”
En banc review of the panel decision was always a long-shot, but became even moreso when the FCC launched the proceeding to reverse Title II, but it was one more arrow in the quiver of net neutrality activists as they prepare for a pitched battle over rolling back the classification.
“Add another legal victory to existing Open Internet laws that have paved the way for a streaming revolution," said INCOMPAS CEO Chip Pickering. "Today’s D.C. Circuit decision validates what consumers, creators and the market already know: Net Neutrality is a win for investment and innovation. “Since the Open Internet laws went into place, streaming has taken off and creators have more opportunity and consumers have more choices. Investment is up, and the same companies who are attacking net neutrality are posting record profits.
“Today’s court decision is a significant blow to those who want to take away Open Internet protections, raise prices and cut off the streaming revolution. The FCC and the courts have spent a significant amount of time and effort over more than a decade on various Open Internet policies, and the current law has shown itself to be both legally sustainable and market effective.”
"Today's decision is a win for consumers," said Lisa Hayes, general counsel for the Center For Democracy and Technology. "The court agreed that Title II classification is sound, and that the FCC has authority to regulate the marketplace. Net neutrality is essential to a vibrant internet ecosystem, and CDT will continue to defend the open internet in the days and years to come."
"Today’s decision upholds the sound and successful net neutrality framework that the FCC instituted in 2015," said Demand Progress executive director David Segal. "Chairman Pai’s anti-net neutrality proposal, backed by the country's largest ISPs—the same industry whose petition was just denied—would dismantle this framework and undermine Americans' ability to rely on the internet as an open forum for speech, commerce, and other important uses. In the months ahead activists and the public have every intention to continue to mobilize and oppose Pai’s plan each step of the way."
"The idea that Congress did not give the FCC authority to classify ISPs as common carriers flies in the face of history," said Andrew Schwartzman of the Georgetown University Law Center's Institute for Public Representation of the court's decision that the FCC had the authority. "DSL [broadband via digital subscriber line] was regulated as a common carrier service until 2005, when the FCC moved it from Title II to Title I. If the FCC had authority to change the classification of DSL in 2005, how could it not have authority to reclassify it?"
USTelecom, whose ISP members strongly opposed Title II, which was branded the "nuclear option," was looking to the dissents for comfort, as well as the new FCC Republican majority to achieve that review and rollback itself.
“We’re gratified that three of the D.C. Circuit judges wanted to rehear the case and that the FCC itself is now considering new rules to move back to investment and consumer-friendly net neutrality policies," said CEO Jonathan Spalter. "Broadband innovators strongly support net neutrality and will continue efforts to promote policies that encourage investment and innovation in America’s broadband networks, consistent with the deregulatory structure of the 1996 Telecom Act. At the end of the day, we agree with Judge Brown that when it comes to establishing a vision for the internet, any ‘orthodox view of checks and balances leaves the choice of vision to Congress.’ 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.”
"The DC Circuit has just thrown down the gauntlet to Congress on Net Neutrality. It is now clearly up to Congress to address Title II, privacy and other thorny issues surrounding internet regulation," said Adonis Hoffman, chairman of Business in the Public Interest and former chief of staff to the FCC's now loan Democrat Mignon Clyburn.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.