A top US court on Monday upheld the legality of federal rules protecting net neutrality, the internet's open access principle, providing a much-needed boost to activists who are resisting efforts by Trump's top telecom regulator to dismantle the Obama-era FCC's policy.
Net neutrality means that the nation's largest internet service providers (ISPs) like AT&T and Verizon can't favor their own content, block rival services, or sell online "fast lanes" to the highest bidder. In 2015, the Federal Communications Commission codified the principle through its landmark Open Internet order, in a major victory for public interest advocates.
Broadband giants like AT&T and Verizon oppose the FCC's policy because it subjects them to utility-style regulation, and they promptly sued the agency to kill the rules. Last summer, a three-judge panel of the DC Circuit Court of Appeals upheld the policy, in a bitter defeat for the broadband giants. In response, the ISPs asked for a rare "en banc" review by the full DC Circuit. On Monday, that request was denied.
Open internet advocates cheered the latest decision, even as they vowed to resist efforts by Trump's FCC chief Republican Ajit Piai to overturn the US net neutrality policy through a FCC rule-making process.
The DC Circuit's ruling was important—and emboldening to activists—because it reaffirmed that the FCC is on solid legal footing with the Open Internet order, effectively knee-capping the legal arguments of net neutrality opponents.
"The DC Circuit has once again confirmed that the FCC's Open Internet rules are lawful and supported by the evidence," said John Bergmayer, senior counsel at DC-based digital rights group Public Knowledge. "Now, the primary threat to these important consumer protections is FCC Chairman Pai's determination to roll them back, and to hand more power to monopolistic internet access providers."
"The case against net neutrality and Title II is weak, and it should be settled by now."
Pai's crusade to overturn the FCC's net neutrality policy is consistent with the latest Republican ideology that has led to dramatic efforts by the Trump administration to roll back consumer protections across broad swaths of the economy, including safeguards protecting online privacy, public health and the environment.
The nation's largest ISPs oppose the FCC's policy because it classifies them as "common carriers" under Title II of the Communications Act, thereby requiring them to ensure open and equal access to their networks. Despite the fact that the FCC declined to apply many of the more onerous features of Title II to the ISPs, like rate regulation, the industry still views Title II as a gross regulatory overreach. That's why they want to see the policy dead.
Pai, a former Verizon lawyer, appears more than happy to oblige, despite broad opposition from consumer advocates, technical experts, online startups, and Silicon Valley giants. Last week, Pai launched a campaign to dismantle the net neutrality policy—and potentially replace it with unenforceable, voluntary commitments by ISPs. This process is expected to take several months, starting with the FCC's open meeting in May.
"The case against net neutrality and Title II is weak, and it should be settled by now," said Matt Wood, policy director at DC-based public interest group Free Press. "The rules are working, and the only uncertainty is coming from Ajit Pai and his industry friends. It's too much to hope that they'll get the memo this time around, but the most important thing today is that internet users have notched yet another legal victory for their rights."
In dismissing the broadband industry's request for an "en banc" hearing, the DC Circuit majority, led by Judge Sri Srinivasan and Judge David Tatel, rejected the two main claims advanced by opponents of the FCC's policy. First, the DC Circuit affirmed that the FCC had ample authority to reclassify ISPs as common carriers. Second, the court dismissed the much-ridiculed argument that the FCC's policy somehow infringes the free speech rights of broadband companies.
Big Telecom now must decide whether to appeal the DC Circuit's ruling to the Supreme Court—or simply wait for Pai to do the industry's bidding. Even if the high court grants certiorari, which many experts believe is unlikely, the case would not be heard until next year. By then, Pai's FCC may have successfully repealed the net neutrality policy, setting up yet another legal showdown if public interest advocates can show that Pai acted in an "arbitrary and capricious" manner in violation of the Administrative Procedure Act.
Open internet activists want to defeat Trump and Pai now, which is why they're organizing a grassroots effort to oppose Pai's plan at the FCC, in Congress, and in the streets, if necessary. In 2014, some 4 million people filed comments with the agency, most supporting strong net neutrality protections. Activists hope the forthcoming uprising in support of the FCC's Title II rules will improve upon that showing.
"Chairman Pai's anti-net neutrality proposal, backed by the country's largest ISPs—the same industry whose petition was just denied—would dismantle this framework and undermine Americans' ability to rely on the internet as an open forum for speech, commerce, and other important uses," said David Segal, executive director of Demand Progress, a progressive organizing group. "In the months ahead activists and the public have every intention to continue to mobilize and oppose Pai's plan each step of the way."