FCC’s Net neutrality rules win big in appeals court

The Federal Communications Commission has won a major victory in its decade-long battle to keep the internet open.

In a ruling issued Tuesday, the US Court of Appeals for the District of Columbia Circuit upheld the rules the agency imposed in February 2015.

The decision confirms the FCC’s contention that it has the authority to place broadband providers under some of the same strict regulations that have governed telephone networks for more than 80 years. The appeals court ruling could be the last word in a high-stakes argument over the business side of the internet, but the broadband and wireless industries will likely look for cracks in the decision that they may use in an appeal to the US Supreme Court.

Still, the FCC has the high ground for now. “Today’s ruling is a victory for consumers and innovators who deserve unfettered access to the entire web,” FCC Chairman Tom Wheeler said in a statement.

“After a decade of debate and legal battles, today’s ruling affirms the Commission’s ability to enforce the strongest possible internet protections — both on fixed and mobile networks — that will ensure the internet remains open, now and in the future,” Wheeler said.

The FCC’s rules have been backed by Google, Netflix and President Barack Obama, while Verizon, AT&T and Comcast, among others, have spoken against them.

“We have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal,” David McAtee, AT&T’s general counsel, said in a statement. AT&T joined the two industry groups that filed the suit.

Those who supported the regulators’ efforts said that Tuesday’s ruling definitively answers the question of whether the agency has the authority to impose Net neutrality rules and to reclassify broadband.

“Today, the Court of Appeals has affirmed the FCC’s authority to protect consumers and innovation on the internet,” Gene Kimmelman, CEO of Public Knowledge, said in a statement. “This decision should lay to rest what has become a needlessly contentious issue. Now consumers will be assured the right to full access to the internet without interference from gatekeepers.”

Net neutrality is the idea that all traffic on the internet should be treated equally. This means your broadband provider, which controls your access to the internet, can’t block or slow down the services or applications you use over the web. It also means your internet provider can’t create so-called fast lanes that force companies like Netflix to pay an additional fee to deliver their content to customers faster.

Although there is broad agreement with the basic premise of Net neutrality, the FCC’s rules have become a lightning rod for controversy because the commission reclassified broadband as a public utility. It’s this issue that prompted telephone companies and cable operators to band together and sue the government. They argued the new classification lets the FCC impose higher rates and will discourage companies from building or upgrading their networks. The agency has said it has no intention of regulating rates or quashing innovative business models, arguing that it reclassified broadband only to ensure it could fight legal challenges that internet providers would lob its way in the future.

How did we get here?

The issue of how or even if the government should have rules to protect the internet has been percolating for more than a decade. The FCC had adopted a set of principles for an open internet in 2005. Three years later when the agency tried to reprimand Comcast for violating those principles, a federal court ruled the FCC had no authority to take such action. In 2010, the agency made good on its promise to protect the open internet with its first set of true Net neutrality regulations.

Verizon challenged these rules in court, and in 2014, the court once again questioned the FCC’s legal authority. But in a small victory for the FCC, the court acknowledged the agency’s concern that large broadband providers might abuse their power and suggested employing a sounder legal argument based on the 1996 Telecommunications Act.

The FCC rewrote the rules in 2015, sparking public debate over how it should impose Net neutrality. The general public didn’t start paying attention to this issue until June 2014. That’s when comedian John Oliver devoted part of his HBO show, “Last Week Tonight,” to accusing cable companies of shaking down regulators to get a rewrite of the rules. Thanks to Oliver’s 13-minute rant, which called on viewers to flood the FCC with comments supporting an open internet, 4 million Americans contacted the agency, crashing its servers.

With the public rallying support for stricter regulations, President Obama threw his weight behind the plan to reclassify broadband. The issue has been politicized along strict party lines, with the two Republican FCC commissioners opposing the rules and the three Democratic commissioners supporting them.

After the commission passed the rules in 2015, the broadband and wireless industries quickly sued the government stating it did not have the authority to reclassify broadband. These groups contend that the regulation will stifle innovation and raise prices for consumers.