Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, May 1, 2017

DC Circuit Denies Petition For Rehearing En Banc of 2016 Net Neutrality Decision

The DC Circuit has declined to review its 2016 ruling upholding the net neutrality rules. The per curiam opinion addresses the arguments made by the dissent that there is a distinction between holding that the statute clearly classifies ISPs as broadband providers under Title II and holding that the agency may classify ISPs as providers under Title II. Under its 2016 ruling, the court had ruled that the agency had the power to classify ISPS as providers under Title II.

[T]he net neutrality rule raises no issue under the First Amendment. The key to understanding why lies in perceiving when a broadband provider falls within the rule’s coverage. As the Order explains, broadband ISPs that are subject to the rule “sell retail customers the ability to go anywhere (lawful) on the Internet”—they “represent[] that they will transport and deliver traffic to and from all or substantially all Internet endpoints.” Order ¶ 27; see id. ¶¶ 15, 350. They “display no . . . intent to convey a message in their provision” of internet access, id. ¶ 549, as would be necessary “to bring the First Amendment into play,” Texas v. Johnson, 491 U.S. 397, 404 (1989)....

For a broadband ISP that holds itself out to consumers as a “neutral, indiscriminate conduit”—i.e., as a pathway to “all content on the Internet, without alteration, blocking, or editorial intervention,” Order ¶ 549—the rule requires the ISP to abide by its representation and honor its customers’ ensuing expectations. The ISP therefore cannot block its subscribers’ access to certain websites based on its own preferences. Nor can it engage in “throttling,” which, while stopping short of outright blocking, degrades a user’s experience with selected content so as to render it largely, even if not technically, “unusable.” Id. ¶ 17. Nor can an ISP create “fast lanes” favoring content providers who pay the ISP (or with whom it has a commercial affiliation), while relegating disfavored (i.e., nonpaying) providers to “slow lanes.” Id. ¶¶ 18, 126. Like blocking and throttling, paid prioritization practices of that variety are incompatible with a promise to provide a neutral, indiscriminate pathway to content of a customer’s own choosing. 



Link to the full opinion (United States Telecom Association v. F.C.C.) here.

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