On June 14, 2016, the D.C. Court of Appeals ruled 2-1 in favor of the Federal Communication Commission’s (FCC) net neutrality rules, which the commission approved on February 26, 2015 (published March 12, 2015). This reclassified broadband internet access service (BIAS) as a telecommunications service under Title II of the Communications Act, affording the FCC greater regulatory authority over Internet Service Providers (ISPs) or BIAS providers. In response to the reclassification, the United States Telecom Association, a trade group representing various telecomm giants, joined by other companies and groups, filed a Protective Petition for Review of FCC’s net neutrality rules. The D.C. Circuit Court of Appeals rejected the petition, siding with the FCC’s position on a number of issues raised, including the following:

  • BIAS as a service is separate from information services;
  • The FCC can regulate interconnection arrangements between BIAS providers and edge providers on a case-by-case basis to ensure that BIAS providers do not use terms of interconnection to disadvantage edge providers or prevent consumers from reaching the services and applications of their choosing;
  • Mobile broadband is a commercial mobile service;
  • The FCC has independent rulemaking authority under Section 706 of the Telecommunications Act of 1996 and can therefore issue the anti-paid-prioritization rule;
  • The FCC’s General Conduct Rule, based on the FCC’s conclusion that three express rules barring blocking, throttling and paid prioritization are insufficient to protect the open internet, is not unconstitutionally vague; and
  • The Net Neutrality rules impose nondiscrimination and equal access obligations that do not raise and have never raised a First Amendment concern. The BIAS providers regulated by the rules are only broadband providers that hold themselves out as neutral, indiscriminate conduits.

The court’s decision provides underlying jurisdictional support to the Commission’s controversial Notice of Proposed Rulemaking In re “Protecting the Privacy of Customers of Broadband and other Telecommunication Services” (FCC 16-39), which we have previously discussed here. The NPRM was open for comment until May 27, 2016, and the FCC’s response is expected on June 27, 2016. The regulatory environment for BIAS providers will evolve as the FCC continues to promulgate rules under its Net Neutrality authority. For more information, contact the authors.