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Internet Can Be Treated as Utility, DC Circuit Rules

By Jonathan R. Tung, Esq. on June 21, 2016 | Last updated on March 21, 2019

In a major ruling last week, the DC Circuit left undisturbed the FCC's decision on forced net neutrality. Internet service providers balked at the notion that the internet should be regarded as a utility. But they will simply have to get used to this new reality.

This decision, which surprised both proponents and opponents alike, means several things, including more litigation.

Internet Services Providers v. the FCC

Th suit began when several ISPs brought claims against the FCC, arguing that the federal agency stepped way out of bounds by authoring very strict rules applicable to internet providers far beyond the agency's congressional mandate. As you will recall, these controversial rules laid out the mandate that cable and telecom companies like Comcast could not use their control over the infrastructure to unfairly benefit themselves commercially to the detriment of others.

Certain bright line rules essentially forbid companies to choke bandwidth for some websites while increasing flow for others with whom they have a commercial relationship. Written inside those rule are additional discretionary allowances that give the FCC the power to sniff out behavior it deems unfair under its "general conduct standard," a standard that many companies think leads to a slippery slope.

On ISPs and Telecoms

The DC Circuit refused to undermine the FCC's opinion that cable companies and ISPs should not be governed under the FCC's jurisdiction and that they were properly recategorized as telecoms. Rather, it punted the issue completely and said that it was up to the FCC to make the ultimate decision. In doing so, it largely gave deference to the FCC's decision while citing the Chevron doctrine.

If the decision of the DC Court remains undisturbed, it means that we are now living in a world where mobile phone service providers and cable internet have been bundled together and will now be treated like telecoms of the old.

On Free Speech

The court was also not convinced by the plaintiffs' claims that the FCC rules were a constraint on free speech. The most important distinction in the ruling was the court's opinion that user content is not ISP speech. The court's other point, based on a distinction of limited space on the printed page versus the paid subscription of users will no doubt garner much legal analysis in the coming weeks.

The only court left to go would be the Supreme Court of the United States. More than likely, we can expect an appeal will be forthcoming.

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