Court Upholds FCC’s Open Internet Order

JSI Summarizes Rules that Continue to Apply

On June 14, 2016, yet another pivotal net neutrality milestone was reached as the U.S. Court of Appeals, District of Columbia Circuit voted 2-1 to uphold the rules adopted in the 2015 Open Internet Order. The controversial rules resulted from years of back-and-forth with the courts, the FCC, and involvement by an extremely active public interest component and vehement opposition from industry heavyweights like AT&T and Comcast. At the core of the argument in the latest court battle was whether or not the FCC actually had authority to regulate broadband services under Title II as telecommunications services.

In finding that the FCC adequately justified changing the classification of broadband from information to telecom services, the two judges ruling in favor of the FCC cited the critical role of broadband in society and how it has transitioned over the years from a luxury to a necessity, like other utilities that are subject to heavier-handed regulation. The dissenting judge, however, argued that the FCC’s assertions of changed factual circumstances were “weak at best” and that the agency’s explanation of new policy perceptions were “watery thin and self-contradictory.”

While it is likely that the court decision will be appealed, companies are reminded of the major rules applicable to ISPs that remain in place:

• Transparency requirements from the 2010 Open Internet Order, including disclosure on websites of:
  • Network management practices
  • Performance and commercial terms (“broadband nutritional labels” can be used as a safe harbor)
• Privacy and consumer information
  • ISPs must take “reasonable good-faith steps” to comply with Section 222 of the Telecommunications Act, which addresses CPNI
  • FCC has initiated a rulemaking proceeding to develop CPNI rules for broadband
• Sections 201 and 202 of the Telecom Act, which require reasonable and just conduct of ISPs to protect consumers and promote competition
• Section 224 of the Telecom Act, which pertains to pole attachments and rights of way
• Sections 225, 255 and 251(a), which pertain to disability access

For small providers, the “enhanced” transparency rules adopted in the 2015 Open Internet Order do not apply to those with less than 100,000 subscribers due to a small carrier exemption. However, the FCC will review the exemption again this year and it may not be extended.

JSI is reviewing the court’s decision and will provide deeper analysis in a forthcoming edition of JSI News & Commentary. Meanwhile, if you have any questions about the court ruling, please contact John Kuykendall or Cassandra Heyne at 301-459-7590 in the Maryland office or Douglas Meredith in the Utah office at 801-294-4576. If you would like assistance with complying with net neutrality rules, please contact Valerie Wimer or Terri Parrilla at 301-459-7590.

Source: JSI e-Lert