(June 20, 2016 – Jarret Cummings) Last week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the 2015 Open Internet Order of the Federal Communications Commission (FCC) on a 2-1 decision. The majority found that the arguments raised by the plaintiffs seeking to overturn the order, which included reclassification of broadband service as a common carrier service (giving the FCC more authority to regulate consumer broadband service) and net neutrality rules (such as bans on blocking, throttling, and paid prioritization), were without merit. (For more information about the current net neutrality rules, please see the previous Policy Spotlight post discussing the rules and EDUCAUSE's work as part of a higher education/libraries coalition to advance them.)
As a result, the 2015 order, and the net neutrality rules it established, will remain in effect. The major telecommunications companies pursuing the case may choose, however, to appeal the decision to the full D.C. Circuit Court of Appeals or ultimately to the Supreme Court. The appeals court decision therefore serves as an important milestone in solidifying net neutrality protections, but whether it constitutes the end of the road in terms of legal challenges remains to be seen. Even if it is, Congress may still decide to pursue new legislation altering net neutrality rules as well as the FCC's authority to regulate consumer broadband service generally.
The current chair of the Senate Commerce Committee, John Thune (R-SD), has made no secret of his interest in pursuing a full overhaul of the legal framework governing the nation's telecommunications industry, with early proposals indicating a willingness to codify some basic network neutrality protections in law (but perhaps not a ban on paid prioritization) while freeing industry from a regulatory structure originally developed to oversee monopoly telephone service. The outcome of this year’s Senate elections, which could return the Senate to Democratic control, will go a long way to determining whether comprehensive legislation in this area is possible any time soon. A Democratic committee chair might be interested in establishing net neutrality protections in law, as well, but her or his potential interest in strengthening, not moderating, such protections would likely increase Republican interest in filibustering such a bill. As ranking member instead of chair, Sen. Thune might wait and hope for a Republican president and Congress after the 2020 elections rather than see this issue move from regulation to legislation on unfavorable terms.
For those interested in delving deeper into the court’s decision, Krista Cox, director of public policy initiatives at the Association of Research Libraries (ARL), has posted a breakdown of last week's ruling. (Note that EDUCAUSE served as a partner with ARL and the American Library Association in leading the higher education/libraries net neutrality coalition.) Cox does a great job of briefly explaining the court’s findings on each of the issues raised in the case, which led to the clean sweep in the FCC's favor.
Jarret Cummings is director of policy and government relations at EDUCAUSE.