Pending D.C. Circuit Ruling Could Decide Fate of the Open Internet

The internet has morphed from a timed-forum, purchased from compact discs sent directly to your house in spam fashion (thanks AOL) to an everyday necessity that people of the youngest age greatly depend on. Like the little old man hiding behind the curtain in Oz, most people fail to understand how this world wide access to information actually operates. For some, ignorance is bliss. For others, their right to an unabated internet is essential to life.

Each country regulates its internet a certain way, from the very extreme (we are looking at you China) to the completely unfettered. Net neutrality, or Open Internet, is a term that most have heard of but few really understand. As described by Wikipedia, net neutrality is the principle that Internet service providers and governments should treat all data on the Internet the same, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, or mode of communication. Think of it as an equal rights movement for internet access.

Opponents of net neutrality threaten to regulate the internet in a manner that instills a significant measure of fear into the online system that we all have come to love. If the companies backing the demise of net neutrality have their way, the days of streaming unlimited movies and TV shows without concerns of throttling could be long gone.

Proponents of net neutrality received a big win when the FCC approved a proposal by FCC Chairman Tom Wheeler to base new Net Neutrality rules on Title II of the Communications Act.  However, the D.C. Circuit will have a say (and perhaps the last say) on whether or not this win will stand when they decide United States Telecom Association v. FCC.

Reclassifying Internet as Telecommunication Services
Most people will remember the days when the internet required user to listen to a high pitched connecting sound just to start surfing the web. Those days are long gone and surfing the web is literally available at every user’s fingertips. While most people don’t think of telephones and the internet as being remotely the same, the FCC has decided to lump the two together to allow the internet to be regulated more equally.

The crucial question in this case before the D.C. Circuit is whether internet providers can be reclassified as “common carriers.”  Although this reclassification may seem arbitrary, the repercussion of the classification is the crux of the argument for opponents to net neutrality. In their brief they argue that “The FCC relies on Chevron deference to support reclassification of broadband Internet access service as a telecommunications service.  No deference is warranted because the plain language and structure of the Act demonstrate that Congress spoke directly to the issue.”

To counter this argument, the FCC brandishes the decision in the Brand X case to show that the reclassification was reasonable. Appeals Court Judge David Tatel, the author of the original case before this court, helped hammer this idea home.

Most of the discussion at oral arguments focused on whether broadband providers were already offering “common carrier” service to their customers. The imposition of common carriage restrictions on internet providers hinges on whether they can be considered “telecommunications services.” This classification varies substantially from the lightly regulated “information services.”  ISPs argue that internet access is properly defined as an information service, but the FCC argues that they have the discretion to make that decision.

According to the three judges faced with deciding this case, the life of this case may rise and fall on this issue of reclassification. Depending on how this court decides this one question, it may make the rest of the case moot and completely kill any hopes that the First Amendment issues mentioned below gets any light of day in this decision.

First Amendment Issues
On what seems like an unlikely claim that will be settled by the D.C. Circuit this time around, the First Amendment question raised by two of the appellants in this case seemed to be swept to the side by the reclassification issues.

In their brief, Alamo argues that the FCC rules violate the First Amendment because broadband providers are speakers since they engage in speech, and they exercise the same editorial discretion as cable television operators in deciding which speech to transmit. The FCC counters by saying that the rules do not impair broadband providers’ First Amendment rights at all because broadband providers are not acting as speakers but instead as conduits for the speech of others. The FCC goes even further stating that even if the First Amendment were implicated, the open Internet rules would easily pass muster.”

The fact that the court devoted only 20 minutes to the entire First Amendment argument and that neither Judge Tatel nor Judge Sri Srinivasan were sold on an infringement of this right makes this issue seem mostly dead in the water.

Supreme Court Bound?
While nothing is for certain when it comes to the Supreme Court, it is most likely that the losing side of this case will at least try to stoke the fires underneath the nine eight justices.  The internet service providers will almost definitely appeal to the highest court if they come out on the wrong end of this one. On the flip side the FCC might appeal the D.C. court ruling, however, it will depend on how far the D.C. Circuit decides to attack this case.