A three judge panel in the Washington DC Circuit Court of Appeals has issued its decision in a high profile case Verizon bought against the Federal Communications Commission (FCC).
Verizon challenged the FCC’s right to impose rules that would prevent ISPs from giving priority to certain types of content, or content from particular users in an attempt to maintain so-called ‘net neutrality’.
The FCC adopted the rules in 2010 after the practice of some ISPs of allowing certain classes of Internet traffic to travel through their networks more easily attracted significant adverse criticism.
The FCC rules were intended to ensure no Internet content providers were being disadvantaged by ISPs giving priority to Internet traffic from users who were prepared to pay more. Many ISPs – Verizon foremost amongst then – said that some heavily used and high bandwidth sites, such as Netflix and YouTube, used too high a proportion of traffic.
There were also concerns that smaller content providers might be disadvantaged, and that users would find certain types of traffic throttled.
Verizon challenged the FCC right to demand ISPs treat all users equally. David Tatel, the high profile judge who headed the panel, agreed. “Even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates.
“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.” He said in his judgement.
“Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”
Verizon, as might be expected, welcomed the decision. Randal Milch, Verizon’s general counsel, admitted that the court rejected Verizon’s position that Congress did not give the FCC jurisdiction over broadband access.
“But at the same time, the court found that the FCC could not impose last century’s common carriage requirements on the Internet, and struck down rules that limited the ability of broadband providers to offer new and innovative services to their customers. The court upheld the commission’s disclosure rules.”
He went on to say the decision will not threaten net neutrality. “One thing is for sure: Today’s decision will not change consumers’ ability to access and use the Internet as they do now. The court’s decision will allow more room for innovation, and consumers will have more choices to determine for themselves how they access and experience the Internet.
”Verizon has been and remains committed to the open Internet, which provides consumers with competitive choices and unblocked access to lawful websites and content when, where and how they want. This will not change in light of the court’s decision.
”We look forward to working with the FCC and Congress to keep the Internet a hub of innovation without the need for unnecessary new regulations that seek to manage the explosive dynamism of the Internet.”
The ruling paves the way for US ISPs to provide Internet ‘fast lanes’ for high paying content and service providers, to the detriment of those prepared to pay less – and consumers. Just last week AT&T flagged its intention to introduce ‘Sponsored Data’, a plan that would allow it to charge Netflix, YouTube and other content providers more money to allow AT&T mobile customers to stream movies and videos without exceeding data limits.
Despite Verizon’ assurances, supporters of net neutrality says it endangers the freedoms they have been working for.
“There is the potential for the world to change substantially” in terms of how the Internet is run, said Jeffrey Eisenach, director of the Center for Internet, Communications and Technology Policy, quoted by the Los Angeles Times. “This is a big deal.”
The FCC said it may appeal the decision. “The Circuit Court has correctly held that ‘Section 706 vests the Commission with affirmative authority to enact measures encouraging the deployment of broadband infrastructure’ and therefore may promulgate rules governing broadband providers’ treatment of Internet traffic,” said FCC Chairman Tom Wheeler
“I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment.
“We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”
The court’s full decision can be found here