On 14th January 2014 the U.S. Court of Appeals for the District of Colombia Circuit decided upon a Petition by Verizon on the 2010 net neutrality Order of the Federal Communications Commission (FCC), the so-called ‘Open Internet Order’. The Order imposes disclosure, anti-blocking and anti-discrimination requirements on broadband providers.
The Court recalled its earlier Decision (2010) in the case of Comcast Corp. v. FCC in which it had determined that the FCC had “failed to cite any statutory authority that would justify its order compelling a broadband provider to adhere to open network management practices”. This time the Court concludes that the FCC was right in assuming that the Telecommunications Act 1996, notably Section 706, vests it with “affirmative authority to enact measures encouraging the deployment of broadband infrastructure”. The Court also concluded that this Section of the Telecommunications Act empowers the FCC “to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here..”.
However, the Court stresses that the fact that the FCC has general authority to regulate, does not imply that, in doing so, it may contravene express statutory mandates. As the FCC had chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Court concludes that the Communications Act expressly prohibits the FCC from nonetheless regulating them as such. As the FCC failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, those rules have now been annulled by the Court.
To learn more about the European position on net neutrality, click here.