The federal judges who upheld the FCC's TItle II classification of ISPs last year have signaled that even under those rules, ISPs could block content or slow certain traffic, just so long as they created a "walled garden" that had clear signage signaling that was what they were doing.
That is according to a new blog post from Hank Hultquist, VP of federal regulatory for AT&T, which strongly opposed Title II.
Hultquist cites the concurring opinion from judges Sri Srinivasan and David Tatel earlier this month in the en banc (full court) decision of the U.S. Court of Appeals for the D.C. Circuit not to review the three-judge panel ruling last year to uphold the FCC's Open Internet order. Srinivasan and Tatel wrote the majority opinion in that panel decision.
"In the past," said Hultquist, "supporters of Title II often alleged that without reclassification, ISPs would be free to block unpopular opinions or viewpoints that they disagreed with. In the understanding of the DC Circuit panel majority, it seems that the Title II order does not touch such practices as long as an ISP clearly discloses its blocking plans to customers."
He quoted from the concurring opinion, in which the judges said: "[T]he net neutrality rule applies only to ‘those broadband providers who hold themselves out as neutral, indiscriminate conduits’ to any content of a subscriber’s own choosing… [T]he rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway—i.e., an ISP making sufficiently clear that it provides a filtered service involving the ISP’s exercise of editorial discretion.”
Hultquist pointed out if that were in fact the case, then nothing but market forces had prevented that blocking and slowing under Title II, and that some practices that have been alleged to violate Title II actually don't, "including MetroPCS’s plan to offer a low-cost tier blocking most video streaming (except for YouTube), as well as the original version of T-Mobile’s Binge On.…adequate disclosures."
He also said it was "noteworthy" that the judges said that various forms of "editorial intervention" are OK under Title II, "such as throttling of certain applications chosen by the ISP, or filtering of content into fast (and slow) lanes based on the ISP’s commercial interests,” he said, quoting the decision.
"Wow. ISPs are not only free to engage in content-based blocking, they can even create the long-dreaded fast and slow lanes so long as they make their intentions sufficiently clear to customers," he wrote.
Hultquist said that if the judges are correct the Title II order is "a seriously underdressed emperor."
The blog comes as the FCC is collecting input on FCC chairman Ajit Pai's proposal to roll back Title II classification, which Title II fans say will open the door to blocking and slowing, a door Hultquist says the judges indicated was already open under Title II.