The Free Internet Project

D.C. Circuit upholds FCC's net neutrality decision, the 2015 Open Internet Order

In a divided 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Communications Commission's 2015 Open Internet, which "reclassified broadband service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act" like a phone service.  Based on that classification, the FCC subjected Internet providers to principles of net neutrality.  The decision is viewed as a major victory for President Obama and FCC Chairman Thomas Wheeler, as well as nonprofits and activists who champion a free and open Internet, although the telecom plaintiffs vow to appeal the case to the Supreme Court. Download the decision in U.S. Telecom Assn. v. FCC  

Some key passages of the opinion: 

  • "In Brand X, the Supreme Court held that it was “consistent with the statute’s terms” for the Commission to take into account “the end user’s perspective” in classifying a service as “information” or “telecommunications.” 545 U.S. at 993. Specifically, the Court held that the Commission had reasonably concluded that a provider supplies a telecommunications service when it makes a “‘stand-alone’ offering of telecommunications, i.e., an offered service that, from the user’s perspective, transmits messages unadulterated by computer processing.” Id. at 989. In the Order, the Commission concluded that consumers perceive broadband service both as a standalone offering and as providing telecommunications. See 2015 Open Internet Order, 30 FCC Rcd. at 5765 ¶ 365. These conclusions about consumer perception find extensive support in the record and together justify the Commission’s decision to reclassify broadband as a telecommunications service.
  • "That consumers focus on transmission to the exclusion of add-on applications is hardly controversial. Even the most limited examination of contemporary broadband usage reveals that consumers rely on the service primarily to access thirdparty content. The “typical consumer” purchases broadband to use “third-party apps such as Facebook, Netflix, YouTube, Twitter, or, or . . . to access any of thousands of websites.” Computer & Communications Industry Association Amicus Br. 7. As one amicus succinctly explains, consumers today “pay telecommunications providers for access to the Internet, and access is exactly what USCA Case #15-1063 Document #1619173 Filed: 06/14/2016 Page 25 of 184 26 they get. For content, they turn to [the] creative efforts . . . of others.” Automattic Amicus Br. 1.
  • "Indeed, given the tremendous impact third-party internet content has had on our society, it would be hard to deny its dominance in the broadband experience. Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie. The same assuredly cannot be said for broadband providers’ own add-on applications."

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