Today, the federal appeals court for Washington, DC upheld the legal authority behind FCC's Open Internet Order in a 2-1 decision, as first reported by Politico. Faced with multiple legal challenges, the court declined to pare back any of the commission's powers. The ruling can still be appealed to the Supreme Court, but it hands a major victory to FCC chairman Tom Wheeler and net neutrality advocates at large.
Filed the day after the FCC issued its landmark Open Internet Order, the lawsuit challenges the FCC's power to classify internet providers as common carriers under Title II. "These rules will undermine future investment by large and small broadband providers, to the detriment of consumers," The National Cable and Telecommunications Association argued in a brief in support of the lawsuit. "[The order] willfully ignores the hundreds of billions of dollars invested in reliance on the prior policy."
"Today’s ruling is a victory for consumers and innovators"
The lawsuit also questioned whether the FCC had the authority to group wired and wireless services under the same rules. During oral arguments, judges had expressed support for the idea of extending the rules to wireless services. "So if I’m walking in my house with an iPad," Judge Srinivasan asked a lawyer, "at one end of the hall I connect to my Wi-Fi, at the other end, my device switches over to my wireless subscription — did Congress really intend these two services to be regulated totally differently even if I can’t tell the difference?"
The DC Appeals court has traditionally been a tricky venue for the FCC, striking down a number of previous net neutrality measures that did not rely on Title II classification and leading to widespread uncertainty as to how the court would rule. In this case, however, the FCC's case prevailed.
FCC chairman Tom Wheeler has already applauded the ruling. "Today’s ruling is a victory for consumers and innovators who deserve unfettered access to the entire web," Wheeler said in a statement. "After a decade of debate and legal battles, today’s ruling affirms the Commission’s ability to enforce the strongest possible internet protections — both on fixed and mobile networks — that will ensure the internet remains open, now and in the future."
Notably, the Open Internet Order does not affect zero-rating services like T-Mobile's BingeOn or Verizon's Go90, which are intentionally left out of the scope of the order. "I can argue there are some aspects of [zero rating] that are good, and I can argue there’s some aspects of it that are not so good," Wheeler told The Verge in an interview in March. "The job of the regulator is to figure out, 'Okay, now how do I deal with this?'"