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Published on June 15th, 2016 | by Amber Healy

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Net Neutrality Rules Upheld in Court

As anticipated, the US Federal Communications Commission has acted legally in the writing, enacting and enforcing of its net neutrality regulations, the US Court of Appeals for the District of Columbia Circuit ruled Tuesday.

In the 184-page decision, two of the three judges noted that, for the third time in seven years, they were confronted by the question of whether broadband internet providers need to treat all internet traffic in the same way regardless of where it’s coming from. This time around, broadband providers sued the FCC over its intent to use Title II of the Telecommunications Act, which allows phone companies to be regulated as utilities. They argued that the FCC “lacks authority to reclassify broadband as a telecommunications service, that even if the Commission has such authority its decision was arbitrary and capricious, that the Commission impermissibly classified mobile broadband as a commercial mobile service, that the Commission impermissibly forbore from certain provisions of Title II, and that some of the rules violate the First Amendment.”

The court disagreed, saying in part that there’s nothing in the Telecommunications Act to suggest that Congress “intended to freeze in place the Commission’s existing classifications of various services. Indeed, such a reading of the Telecommunications Act would conflict with the Supreme Court…that classification of broadband ‘turns…on the factual particulars of internet technology works and how it is provided’…”

This ruling matters for musicians: The ability to post a video on YouTube without worrying that some viewers would get stuck waiting while your song buffers should now be a thing of the past, now that ISPs are prohibited from stalling or slowing service to websites they don’t own.

The Future of Music Coalition, a strong supporter of the FCC’s net neutrality regulations, thanked the court for the ruling Tuesday, calling it a “major victory for musicians who use the internet to connect with audiences, earn their livelihoods and express themselves creatively. These protections will help ensure that creators and consumers alike enjoy the benefits of a level playing field online.”

FreePress.net, another staunch net neutrality supporter, calls the ruling “a huge victory for the millions and millions of internet users who have fought for years…to ensure that the FCC ha the power to protect everyone’s right to connect and communicate online.”

It’s worth noting that the FCC’s regulations were enacted a year ago, but that hasn’t stopped some telecommunications companies (Verizon, AT&T, Comcast, etc.) from fighting tooth and nail, calling the regulations were a solution in search of a problem. It’s also worth noting that Comcast had to pay hefty fines a few years ago because it was caught charging a fee to Netflix in order to have unhindered service on its internet connection. Net neutrality, as it stands in the US, basically says ISPs can’t charge fines or enact “fast lanes” for content coming from sites it owns while stifling or slowing service from competitors.

In the ruling, judges David Tatel and Sri Srinivasan wrote that internet access has touched nearly every aspect of daily life over the past 20 years, something that can’t be said for “broadband providers’ own add-on applications.” In his dissent, Judge Stephen Williams claimed that the FCC didn’t provide a strong enough proof that there’s a problem with ISPs throttling service. Treating broadband providers like monopolies leaves “little economic space for new firms seeking market entry or relatively small firms seeking expansion through innovations.”

Of course, not everyone is satisfied with the ruling.

In an op-ed piece titled “The King and his Court,” the Wall Street Journal writes that President Barack Obama “has run roughshod over Congress, and most of the media gave him a pass. This has left the judiciary as the last check on executive abuse, and now even that may be falling away. That’s how we read Tuesday’s D.C. Circuit Court of Appeals decision propping up new ‘net neutrality’ rules to regulate the internet like a 19th-century railroad.” In its ruling, the court “has endorsed the most legally and procedurally egregious iteration” of net neutrality regulations.

“No techie or court watcher predicted such a broad win for the FCC, and even Chairman Tom Wheeler must be surprised he snuck everything past Judge Tatel, who has twice ruled against the agency,” the opinion continues.

As soon as the ruling was released, opponents vowed to appeal. This case could, in theory, go to the Supreme Court, which remains one member short since the death of Justice Antonin Scalia. Republicans in Congress have pledged to refuse to even meet with President Obama’s nominee, instead pushing their constitutionally designated duty off until after the November election.

For more on the long and weird fight over net neutrality in the US, read here, here and here.




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I write about music policy and lawsuits because they're endlessly fascinating.


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