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ISPs Eyeing Net Neutrality Issue Before the Supreme Court

14 Jun, 2016 By: Erik Gruenwedel

Following a federal appeals court decision upholding the Federal Communication Commission’s net neutrality provision, major Internet Service Providers say they intend to ask for “en banc” re-vote before all the judges on the D.C. circuit appeals court. A three-judge panel June 14 rendered the 2-1 ruling in favor of the FCC. Should that fail, ISPs say they would pursue the matter to the Supreme Court.

“We have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal,” David McAtee, senior EVP and general counsel at AT&T, said in a statement.

Specifically, ISPs contend the FCC lacks congressional authority to regulate the Internet as a utility, a move they say gives the government (and consumers) too much leeway over pricing and unwarranted allegations of throttling, blocking and paid prioritization, among other issues.

The American Cable Association, which represents about 750 independent cablers providing broadband to nearly 7 million subscribers in rural markets, said its members have never had the incentive or ability to engage in blocking, throttling or paid prioritization that could possibly threaten the openness of the Internet.

"ACA is disappointed that the D.C. Circuit supported the FCC's decision to regulate the complex, computer-like networks of ISPs as though they are ‘dumb' pipes provided by monopoly telephone companies,” said CEO Matthew Polka.

He believes the FCC acted contrary to law and decades of precedent in relying on Title II of the Communications Act of 1934 as the legal basis for its new regulations, whose burdens Polka claims fall disproportionately upon smaller ISPs.

“ACA members have been strongly opposed to being subject to onerous Title II rules to achieve [net neutrality], which would impose unnecessary and significant costs.”

Among the judges deciding the case, the two upholding the FCC ruling were appointed by Democrats, with the dissenting judge a Republican appointee. Likewise, reaction from lawmakers on the appeals court decision fell largely along party lines. Republicans contend net neutrality is bad for business and investment, while Democrats embrace it.

“The FCC’s decision last year to adopt new net neutrality protections was the culmination of years of hard work by lots of Americans who believe, just as I do, that the Internet should remain the free and open platform that it’s always been," Sen. Al Franken (D-Minn.) said in a statement.

FCC commissioner Michael O’Rielly, who voted against net neutrality last year, said he expects the matter to end up before the Supreme Court.

"If allowed to stand … today’s [appeals court] decision will be extremely detrimental to the future of the Internet and all consumers and businesses that use it. We all will rue the day the commission was confirmed to have nearly unmitigated power over the Internet — and all based on unsubstantiated, imaginary 'harms,’” O’Rielly said in a statement.

The full panel of the D.C. circuit court is majority controlled by Democrat appointees.

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