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3rd Circuit Reverses in Favor of ISPs, Rules Against AT&T

By Jonathan R. Tung, Esq. on December 07, 2015 | Last updated on March 21, 2019

Net Neutrality. Data Throttling. These are some of the new vocabulary terms that netizens have become fluent in recently. It seems that every few months, a new court drama plays out over the proper nature of Internet traffic and how to handle it.

One of the key players, AT&T, has been finding itself in courtrooms a lot lately. How nice of them to set precedent for the rest of us.

Core (No Pun Intended) Facts

Long ago, in an agreement far, far away, Core billed AT&T for cutting short calls from AT&T to Core's ISP customers for a number of years including 2004 to 2009. AT&T refused to pay up. Core filed a complaint and the Pennsylvania Public Utility Commission (PPUC) agreed with Core.

AT&T, not ready to take this lying down, decided to call foul on subject matter jurisdiction and claimed that PPUC had no jurisdiction over inbound ISP-traffic -- only the FCC did. The lower court agreed with that assessment. Injured members of the Pennsylvania Public Utility Commission (PPUC) and Core appealed the lower federal court's grant of summary judgment for AT&T. AT&T sought an injunction and review was granted.

At the Circuit

The Third Circuit reviewed the matter and found AT&T's traffic unavailing and without merit. AT&T had sought to characterize ISP-inbound traffic as something that was federally regulated and being subject to federal tariffs.

The circuit rejected this and determined that the FCC's jurisdiction over interstate ISP-bound traffic was not limited only to the FCC and that PPUC was not preempted either by "field" doctrine or by "conflict preemption". The case was remanded to the lower court again for entry in favor of Core and the rest of the members of the PPUC.

Long Been Asked

At least for the Third Circuit, this helps clarify the proper body of law that ought to apply to ISP-bound traffic. How long have academics been struggling with this question? Apparently, for a pretty long time.

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