NCTA on Open Internet: Court Decision Won't Change How We Operate

React is swift and voluminous to court decision to vacate and remand Open Internet order
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Fans and not-so-fans of the FCC's just-vacated Open Internet order were quick to react Tuesday, including the National Cable & Telecommunications Association, which saw the decision as granting the FCC to regulate the Internet (though not in the way it attempted to do so).

“Today’s historic Court decision means that the FCC has been granted jurisdiction over the Internet," NCTA President Michael Powell said. "While we fully expect some to rush to judgment about the fate of the open Internet, we should remember neither the adoption of the Open Internet Order, nor its partial repeal, has led or will lead to significant changes in how ISPs manage their networks.

“The cable industry has always made it clear that it does not – and will not – block our customer’s ability to access lawful Internet content, applications or services. We look forward to working with Chairman Wheeler and the FCC on ensuring that American consumers will continue to enjoy a fast, robust and open Internet experience.”

The court remanded the order back to the FCC to see if it could repair it, though the judges actually were not sanguine about the prospects. They did suggest that the FCC had the general authority to regulate Internet access, but they couldn't do it with common carrier-like regs after classifying Internet access as a non-common carrier service.

That signaled to some net neutrality fans that the FCC should reclassify Internet access as a common carrier service.

The Republican leadership of the House Energy & Commerce Committee was pleased the court had vacated the heart of the order. Said House Energy & Commerce Committee Chairman Fred Upton (R-Mich.) and Communications Subcommittee Chair Greg Walden (R-Ore.). “The court today delivered a victory for jobs and innovation," they said. "This ruling stands up for consumers and providers alike by keeping the government’s hands off the Internet,” said Upton and Walden. “In the Internet’s infancy, the commission made the right decision to leave it free from the interference of government regulators. Today’s ruling vacates the commission’s attempt to go back on this policy and to smother the Internet with rules designed for the monopoly telephone network. Just as before the commission adopted its net neutrality order, with today’s decision American consumers will continue to have access to the Internet and to the content of their choosing without the government playing the role of traffic cop.”

Rep. Henry Waxman (D-Calif.), ranking member of the House Energy & Commerce Committee, saw it differently, urging the FCC to weigh in.

“Today the D.C. Circuit affirmed what never should have been in question – the FCC can protect consumers, innovation, and competition online," said Waxman. "Now the Commission must act expeditiously to exercise the authority the court has recognized.  I look forward to working with the FCC to revise the rules on the books that protect the free and open Internet, so that it remains the robust platform that is driving our economy today and into the future.”

FCC Commissioner Ajit Pai said it was time for the FCC to "take no for an answer," unless Congress steps in (Sen. Ed Markey (D-Mass.) has already promised to try and do so). "For the second time in four years, the D.C. Circuit has ruled that the FCC exceeded its authority in attempting to regulate the Internet. Unless Congress acts, we should stay our hand and refrain from any further attempt to micromanage how broadband providers run their networks. We should focus on removing regulatory barriers to broadband deployment, not imposing unnecessary rules that chill infrastructure investment."

FCC Commissioner Michael O'Rielly sided with those advising against FCC activism in the wake of the decision. "Once again, the D.C. Circuit has confirmed that the Commission’s authority to regulate is not boundless," he said. "Rather than continue to test those boundaries with “prophylactic” regulations, the Commission should look for ways to remove regulatory obstacles to the broadband innovation and investment that will benefit all consumers."

Librarians, by contrast, wanted the FCC to hit the books and figure out a way to make open Internet regs stick.

“The court’s decision gives commercial companies the astounding legal authority to block Internet traffic, give preferential treatment to certain Internet services or applications, and steer users to or away from certain web sites based on their own commercial interests," the American Library Association said in a statement. "This ruling, if it stands, will adversely affect the daily lives of Americans and fundamentally change the open nature of the Internet, where uncensored access to information has been a hallmark of the communication medium since its inception. ALA will work with policy-makers and explore every avenue possible to restore the long-standing principle of nondiscrimination to all forms of broadband access to the Internet.”

Former FCC Chairman Michael Copps, now with Common Cause, said it was time for the FCC to pursue what some cable operators have called the "nuclear option."

"The Court’s decision today is poised to end the free, open, and uncensored Internet that we have come to rely on," said Copps, special adviser to Common Cause’s Media and Democracy Initiative. "The Court’s decision grows out of the FCC’s classification of ISPs as 'information service' providers. While federal law gives the commission limited authority to regulate such services, the FCC could continue to protect the Open Internet if it re-classified broadband as a "telecommunications service," Copps said.

Delara Derakhshani, policy counsel for Consumers Union, said that the decision "strikes a serious blow to a free and open Internet.... Chairman Wheeler needs to take action quickly to keep the Internet accessible and competitive, and Congress should get in the game.”   

Steptoe partner Pantelis Michalopoulos, who presented oral argument in the court for various Open Internet supporters, sees the decision as a victory, echoing Powell's read on the underlying authority question.

“For the first time today, the Court of Appeals for the D.C. Circuit decided that the FCC has the power to protect Internet openness," he said. "The court also upheld the FCC’s finding that an open Internet is beneficial, and that pay-for-priority arrangements can be harmful. The court disagreed with the specific rules the FCC made and sent these rules back to the FCC.  In reconsidering them, the FCC has wide room and many tools at its disposal to use its power in order to safeguard the benefits of Internet openness and counter the harms of pay-for-priority demands.”

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