The principle of net neutrality has once again been compromised following a federal court’s decision that the Federal Communications Commission (FCC) does not have the authority to prohibit a two-tier internet. This ruling came after the FCC responded to requests from Apple and over 40 other tech firms advocating for the maintenance of equal treatment for all online services.
Consequently, internet service providers (ISPs) and mobile carriers can now accept payments from large companies to prioritize their data traffic over others, effectively creating a tiered internet system…
Understanding Net Neutrality
Net neutrality ensures that ISPs treat all online content with equal priority. They cannot charge select websites for expedited traffic while deliberately slowing down access to others. They are also prohibited from accepting payments from one service to hinder access to a competitive service.
Net neutrality has faced a series of legal disputes, leading to its inconsistent enforcement, with the FCC reinstating it under the Biden administration last year. However, its position was already precarious with the incoming Trump administration signaling intentions to overturn these protections while a pending appeals court case lingered.
The Loss of Net Neutrality Protections
As the court has ruled, the outlook is grim. It determined that the FCC lacks the authority to enforce net neutrality regulations.
Utilizing “the traditional tools of statutory construction,” we conclude that Broadband Internet Service Providers only provide an “information service” as described under 47 U.S.C. § 153(24). Therefore, the FCC lacks the authority to implement its net-neutrality policies via the “telecommunications service” definition in the Communications Act, § 153(51).
Additionally, the Act does not allow the FCC to designate mobile broadband—a category of broadband Internet services—as a “commercial mobile service” within Title III of the Act (and therefore impose net-neutrality restrictions). Consequently, we grant the petitions for review and set aside the FCC’s Safeguarding Order.
Informed by the Chevron Ruling
The “Chevron deference” ruling emerged from a 1984 case establishing that when a federal agency asserts it possesses certain powers, federal courts must generally defer to that assertion. Thus, if the FCC claimed the authority to restore net neutrality, a court typically could not deny it.
However, this precedent was overturned last year, allowing other courts the discretion to challenge agency declarations like that of the FCC. The Sixth Circuit Court of Appeals has acted on this, resulting in the elimination of net neutrality protections.
DMN’s Perspective
This development poses serious challenges for both startups and consumers. It permits large tech companies to pay ISPs for superior bandwidth, disadvantaging smaller competitors and ultimately harming consumer choice.
Interestingly, many tech giants who are certainly capable of affording priority treatment opposed this shift, advocating instead for net neutrality. The list of supporters includes Apple, Amazon, Dropbox, eBay, Facebook, Google, Microsoft, Netflix, Reddit, Snap, and Spotify.
Photo by Tom Parkes on Unsplash
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