A three-judge panel on the D.C. Circuit Court of Appeals affirmed the rules in court last year, rebuffing a lawsuit brought by internet service providers (ISPs). Broadband providers appealed their case to the full circuit of judges, who again upheld the rules and explained their reasoning in a lengthy 100-plus page ruling.
AT&T Vice President of Federal Regulatory Hank Hultquist pointed out in a blog post this week a section of the ruling that appears to outline a circumstance in which ISPs could block, slow, or speed up internet traffic — activities expressly forbidden in the FCC’s 2015 Open Internet Order.
“According to the concurrence, which was written by Judges Sri Srinivasan and David S. Tatel, ‘the net neutrality rule applies only to ‘those broadband providers who hold themselves out as neutral, indiscriminate conduits’ to any content of a subscriber’s own choosing,” Hultquist wrote. “The concurrence goes on to say, ‘the rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway – i.e., an ISP making sufficiently clear that it provides a filtered service involving the ISP’s exercise of editorial discretion.'”
Hultquist said he “was surprised” by the argument, since it appears to concede that “[i]n the understanding of the D.C. Circuit panel majority, it seems that the Title II order does not touch such practices as long as an ISP clearly discloses its blocking plans to customers.”
“[I]n the past, supporters of Title II often alleged that without reclassification, ISPs would be free to block unpopular opinions or viewpoints that they disagreed with,” he added.
AT&T supports the Trump administration’s plan to reverse the reclassification of ISPs as common carriers, a public utility designation codified under Title II of the Communications Act that subjects common carriers to a stricter tier of regulations. But Title II itself has nothing to do with blocking or throttling — those rules were created separately by the FCC. The agency only used Title II, created by Congress, to bring ISPs under their umbrella of jurisdiction to justify the enforcement of net neutrality rules (former FCC Chairman Tom Wheeler also forbore from applying many of Title II’s provisions considered unnecessary to the enforcement of the open internet).
Sections of the May court decision parsed by Hultquist go back to an argument Alamo Broadband presented to the court when it argued against the rules in 2015, essentially saying the First Amendment guarantee of free speech grants ISPs the ability to exercise “editorial intervention” with regard to the content it transmits, much the same way a news outlet selects what to cover.
The court rejected that argument, saying “no Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule—i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of their own choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP’s own commercial preferences.”
Judges Srinivasan and Tatel write “the rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway—i.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISP’s exercise of ‘editorial intervention.'”
However they go on to add “no ISP has suggested an interest in doing so in this court,” and that any ISP considering such a service “might have serious concerns about its ability to attract subscribers.” They further added that a provider’s “editing” disclosure couldn’t be “buried” in a service agreement because “the threats of consumer deception and confusion are simply too great.”
“An ISP would need to make adequately clear its intention to provide ‘edited services’ of that kind, so as to avoid giving consumers a mistaken impression that they would enjoy indiscriminate ‘access to all content available on the internet, without the editorial intervention of their broadband provider,’” the ruling reads.
Rather than outlining a real-life scenario in which blocking and throttling were allowable, the judges were deconstructing the argument that the First Amendment grants ISPs the right to block and throttle web traffic.
Hultquist says the decision shows “that only market forces and not FCC rules prevent ISPs from doing virtually everything that proponents of the Title II order feared,” but the judges take exception to that as well, upholding the FCC’s reasoning “that a subscriber might well have no awareness of her ISP’s practices of that kind in the first place: she may have no reason to suppose that her inability to access a particular application, or that the markedly slow speeds she confronts when attempting to use it, derives from her ISP’s choices rather than from some deficiency in the application.”
“After all, if a subscriber encounters frustratingly slow buffering of videos when attempting to use Netflix, why would she naturally suspect the fault lies with her ISP rather than with Netflix itself?” the judges posit.
Even if a consumer becomes aware of their ISP secretly manipulating traffic, “she faces high switching costs constraining her ability to shift away from her ISP if it reneges on its representation by blocking her access to select content.”
Hultquist said the court’s interpretation could be used to justify zero-rating services like T-Mobile’s “Binge On” or “MetroPCS’s plan to offer a low-cost tier blocking most video streaming (except for YouTube).” Such offers received scrutiny under the 2015 Open Internet Order’s general conduct standard, which sought to apply net neutrality protections in less-clear instances of traffic manipulation. FCC Chairman Ajit Pai’s plan to scale back the rules would do away with the standard along with Title II.
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