WASHINGTON — In a setback for the Obama administration’s goal of Internet openness, a federal appeals court Tuesday set aside Federal Communications Commission rules designed to ensure that transmission of all Internet content be treated equally.
The anti-discrimination and anti-blocking requirements bar broadband providers from prioritizing some types of Internet traffic over others.
A three-judge panel said that the FCC has the authority to regulate broadband providers’ treatment of Internet traffic. However, the judges concluded that the FCC failed to establish that its regulations don’t overreach.
“Even though the commission has general authority to regulate in this arena, it may not impose requirements” that violate statutory mandates, wrote appeals judge David Tatel. The judges said the FCC’s rule in effect treated all Internet service providers as common carriers — transporters of people or goods for the general public on regular routes at set rates. Examples of common carriers include airlines, railroads, trucking companies and utilities.
But the court said the commission itself already had classified broadband providers as exempt from treatment as common carriers, which set up a legal contradiction. The FCC failed to establish that its regulations do not impose common carrier obligations on the Internet companies, the judges ruled.
FCC Chairman Tom Wheeler said the commission will now consider its options, including an appeal, to ensure that networks on which the Internet depends provide a free and open platform.
The decision empowers leading Internet providers to decide which Internet services — such as Netflix movies, YouTube videos, news stories and more — they would allow to be transmitted to consumers over their networks.
In some cases, Internet providers such as Verizon, AT&T and cable companies can demand that Google, for example, pay them to ensure that YouTube videos are accessible to all their consumers, or Google could pay extra to ensure that Youtube videos are delivered faster.
The court said it was aware of concerns expressed by supporters of the FCC policy of what might happen if the rules were overturned — as they have been.
“For example, a broadband provider like Comcast might limit its end-user subscribers’ ability to access the New York Times website if it wanted to spike traffic to its own news website, or it might degrade the quality of the connection to a search website like Bing if a competitor like Google paid for prioritized access,” the court said.
Tatel was appointed to the court by President Bill Clinton. The other two appeals judges on the case were Judith Rogers, a Clinton appointee, and Laurence Silbermann, an appointee of President Ronald Reagan.
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