Yesterday, the U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s 2015 “Open Internet Order” in US Telecom Association v. FCC. The two-judge majority rejected several arguments against the FCC’s “net neutrality” rules, concluding among other things that the agency acted permissibly when it reinterpreted Title II of the Communications Act to encompass Internet service providers and expanded its definition of the “public switched network” to include mobile broadband service. The court also found that the FCC did not act arbitrarily in deciding to use its authority to “forbear” from imposing certain regulatory provision on broadband carriers. And the court held that the FCC gave sufficient notice to the public regarding its new rules.
This unfortunate decision is incorrect for numerous reasons, and several parties to the case have already signaled their plans to appeal the ruling. This may result in the D.C. Circuit rehearing the case “en banc”—that is, in front of the entire court, rather than a three-judge panel—and, ultimately, it may well be reviewed by the U.S. Supreme Court. Especially given that Congress amended the Communications Act in 1996 to embrace a deregulatory approach to FCC regulation of the telecommunications sector, it’s troubling that the agency has succeeded thus far in contorting the law to empower it to regulate the Internet. Although courts generally defer to agency decisions in rulemaking proceedings, the FCC’s rationale for its Open Internet Order is particularly dubious, as Judge Stephen Williams pointed out in his dissent.
In the coming days and weeks, we’ll unpack the many implications of this ruling for the Internet’s future on these pages, but there’s one key takeaway for lawmakers who are rightly troubled by the FCC’s victory: Congress needs to erase the ambiguity that several courts have identified in the Communications Act and make clear that the FCC cannot regulate the Internet as a common carrier, no matter how many promises the agency makes that it will refrain from imposing any particularly onerous forms of regulation. Investing in network infrastructure and developing innovative business models for delivering Internet access to Americans will be crucial as technology evolves. But the market won’t realize its potential if the FCC continues to expand its power over the Internet and micromanage transactions between broadband providers, content companies, and other players in the online ecosystem. Given yesterday’s ruling, it appears increasingly likely that only Congress will be able to rein in the FCC.