US court backs FCC against operators on net neutrality

The Federal Communications Commission (FCC), the US telecoms regulator, has won a court battle to uphold its rules on net neutrality. Telecoms operators challenged the FCC’s open internet rules, but a federal appeals court has decied in favour of the regulator.

However operators – working through the United States Telecom Association (USTA) and other industry representatives – are expected to take their case to the Supreme Court.

Circuit judges David Tatel and Sri Srinivasan in the US appeals court ruled against all challenges to the rules. Their colleague, circuit judge Stephen Williams, dissented. He said the FCC provides “little economic space for new firms seeking market entry or relatively small firms seeking expansion through innovations”.

Walter McCormick, president of the USTA, said: “Our industry strongly supports open internet principles and the FCC’s order is wholly unnecessary to keeping the internet open. We will continue to work toward policies that facilitate America’s broadband leadership, are reviewing the court’s decision, and will be evaluating all of our legal options.”

He criticised judges Tatel and Srinivasan, who “unfortunately failed to recognise the significant legal failings of the Federal Communications Commission’s decision to regulate the internet as a public utility, leaving in place regulation we believe will replace a consumer-driven internet with a government-run internet, threatening investment and innovation in years to come.”

It is an intensely political debate. The FCC’s rules are supported by President Barack Obama and are likely to continue if Senator Hillary Clinton wins this November’s presidential election for the Democrats. Tatel and Srinivasan were appointed by Obama and his Democratic predecessor, Bill Clinton; Williams was appointed by President Ronald Reagan, a Republican.

The ruling means that internet service providers – such as AT&T, Comcast and Verizon – are subject to the same rules that apply to their provision of telephone services. They are not allowed to prioritise certain types of traffic.

The National Cable Television Association said it was “disappointed in today’s result”, but would “carefully review the majority and dissenting opinions before determining next steps”. 

It added: “We are particularly gratified by Judge Williams’s recognition of the ‘watery thin and self-contradictory’ nature of the FCC arguments used to justify the imposition of common carriage laws on internet networks. While this is unlikely the last step in this decade-long debate over internet regulation, we urge bipartisan leaders in Congress to renew their efforts to craft meaningful legislation that can end ongoing uncertainty, promote network investment, and protect consumers.”

The full ruling is available here.