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Net Neutrality Survives Lawsuit, Internet Can Be Treated as Utility

By Casey C. Sullivan, Esq. | Last updated on

On the internet, all content is equal. At least, that's the goal behind the Federal Communications Commission's Net Neutrality rules. Propagated last year, Net Neutrality bans three main practices: blocking, throttling, and paid prioritization. But in order to put those rules into place, the FCC first had to classify broadband internet as a utility.

This morning, the D.C. Circuit upheld that classification, finding that the FCC could treat high-speed internet providers as "common carriers" under Title II of the Communications Act of 1934. The decision, issued in a sprawling 184-page ruling, is a major win for the FCC and advocates of Net Neutrality, and could dramatically change how the government approaches internet services.

A Victory for Open Internet

The basis of Net Neutrality is that internet providers must treat all internet traffic similarly. They cannot charge Netflix, for example, for faster content delivery, while letting rival video streaming services lag. Nor can your internet provider, such as Comcast or Time Warner, purposefully slow delivery of content from disfavored websites.

The D.C. Circuit first upheld the FCC's right to enact open internet rules under section 706 of the Telecommunications Act, two years ago. But, it found that the FCC could not apply anti-blocking and anti-discrimination provisions against broadband providers, since the commission classified broadband as an information service under the Communications Act.

Thus, for the FCC's Net Neutrality rules to go into effect, it had to reclassify broadband internet as a telecommunications service and ISPs as common carriers, which it did in its 2015 Open Internet Order.

That order was immediately met with lawsuits from the telecommunications industry, asserting everything from violations of the Administrative Procedure Act, to agency overreach, to First Amendment claims. The D.C. Circuit, in a 2-1 decision, rejected all of those claims on Tuesday, in a gargantuan decision by Judges David S. Tatel and Sri Srinivasan.

What Today's Ruling Means

The first and most practical effect of the decision is to shore up the existing Open Internet regulations, which went into effect on June 12th 2015, almost a year ago to the day.

But the ruling also marks a major shift in how the internet is viewed by the government and courts. Under the FCC's new view, broadband internet is a utility, not unlike phone services, rather than a luxury service that the government need not supervise.

That means the government could more heavily regulate broadband providers. And we're already starting to see greater movement in that direction. In March, the FCC proposed new privacy rules that would limit the type of customer information internet service providers could collect.

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