Net Neutrality Rules and Title II Legal Authority Win Again in Court

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Timothy Karr, 201-533-8838

WASHINGTON — On Monday, the full U.S. Court of Appeals for the D.C. Circuit sitting en banc rejected the phone and cable industry’s ongoing legal effort to kill the FCC’s 2015 Net Neutrality rules. The common-sense rules are also under attack by new FCC Chairman Ajit Pai, who last week announced his plan to destroy them.

Net Neutrality protects the rights of individuals to speak and be heard on the internet without interference from the companies that provide internet access. In 2015, the FCC based these rules in Title II of the Communications Act to ensure its authority to enforce them. It made this decision after the courts repeatedly rejected previous agency attempts to safeguard Net Neutrality under Title I.

As a commissioner, Pai witnessed the public’s embrace of Net Neutrality and knows how popular the open internet is with people of all political stripes. He has paid lip-service to the rules, but his plan unveiled last week directly aims to eliminate the FCC’s Title II legal authority and return to the failed Title I legal theory that the courts have already rejected. Pai’s plan also proposes possible elimination of the rules altogether.

Today, the full court upheld last year's appellate panel decision that Net Neutrality rules based in Title II authority are legally sound. After examining whether the FCC had the authority to protect Net Neutrality under Title II of the Communications Act, the court responded with a definitive yes. Today's controlling decision explained that “the Supreme Court ... has pointedly recognized the agency's authority under the governing statute to do precisely what the Order does” and that “no Supreme Court decision supports the counterintuitive notion that the First Amendment” would bar those rules.

Free Press Policy Director Matt Wood made the following statement:

“This is great news for Net Neutrality. It’s a big win at this interim appeal stage, which the ISPs pursued before potentially asking for a Supreme Court review. Today’s decision is yet another recognition of how sound Title II is. The full D.C. Circuit has now agreed with the Congress that wrote the law in Title II, and with the prior FCC on the legal classification of internet access as a telecom service.

“That leaves only Ajit Pai, bought-and-paid telecom-funded economists, and the ISP lobbyists on the wrong side here. They push nonsense like we saw last week in Pai's proposal, but they are isolated in their own fantasy-land. Pai and these lobbyists refuse to acknowledge what the public wants — and they continue to ignore how the marketplace has boomed under these rules and the FCC’s clear Title II authority.

“It’s not clear that the ISPs will now seek Supreme Court review; if they do, there’s no guarantee that review will be granted. Even if they get a hearing, they’re likely to lose yet again.

“The case against Net Neutrality and Title II is weak, and it should be settled by now. The rules are working, and the only uncertainty is coming from Ajit Pai and his industry friends. It’s too much to hope that they’ll get the memo this time around, but the most important thing today is that internet users have notched yet another legal victory for their rights.”