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.”)
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