Key provision of net-neutrality law struck down by court

Should internet service providers be allowed to restrict access to websites and block certain content from customers depending on how much they pay to be connected? On Tuesday, a federal appeals court said yes.

That ruling was handed down early Tuesday by way of a 2-1 decision in the United States Court of Appeals for the District Columbia Circuit in Washington, DC, and those who’ve been following the case closely say this week’s decision could have colossal consequences for the way Americans access the internet.

Appellate judges were tasked with weighing whether or not the US Federal Communications Commission, or FCC, has jurisdiction with regards to regulating how ISPs deliver content to internet customers.

The Open Internet Order adopted by the FCC in 2010 include net-neutrality rules requiring broadband service providers to give consumers equal access to all lawful content on the web, but telecom giant Verizon argued in court that federal regulators erroneously awarded themselves the ability to enforce that law.

In Tuesday’s ruling, the three-panel appeals court agreed with Verizon and said the FCC had classified broadband service providers in a manner that excludes ISPs from the anti-blocking and anti-discrimination requirements instilled through the Open Internet Order.

With the drafting of the Open Internet Order, the FCC imposed restrictions on broadband service providers akin to the rules in place for “common carriers,” such as telephone and transportation companies that provide vital services to the public. Centuries-old law requires common carriers to not discriminate when it comes to critical to the public operations, and although the FCC has imposed these requirements on internet companies it has failed to classify them as such. Instead, the FCC classified such companies as “information-service providers.”

“[E]ven though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates,” the court ruled. “Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”

PC World’s Brad Chacos wrote that this decision “holds tremendous portent for the future of the internet,” and Gigaom’s Jeff John Roberts called the ruling a “game-changer.”

More succinctly, Reuters journalists reported on Tuesday that the appellate court’s ruling effectively means that “mobile carriers and other broadband providers may reach agreements for faster access to specific content crossing their networks.”

According to Reuters, attorneys for Verizon argued last September that the net-neutrality rules imposed through the Open Internet Order violated the company’s right to free speech because it stripped control of what data it sends across its network and how.

Following Monday’s ruling, however, Verizon general counsel Randal Milch released a statement suggesting that the company won’t use the court’s decision to censor content to customers.

"Today's decision will not change consumers' ability to access and use the Internet as they do now," Milch said. “Verizon has been and remains committed to the open Internet which provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want. This will not change in light of the court's decision.”

Meanwhile opponents of the court’s decision say companies like Verizon and other ISPs will now be awarded broad new abilities when it comes to delivering content which could indeed limit who has access to what.

"Its ruling means that Internet users will be pitted against the biggest phone and cable companies — and in the absence of any oversight, these companies can now block and discriminate against their customers’ communications at will,” Craig Aaron, the CEO of consumer advocacy group Free Press, said in a statement released Tuesday.

“Verizon,” Aaron added, “…will race to turn the open and vibrant web into something that looks like cable TV. They’ll establish fast lanes for the few giant companies that can afford to pay exorbitant tolls and reserve the slow lanes for everyone else.

FCC Chairman Tom Wheeler plans to appeal the ruling, and said Tuesday that he’s “committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment.”