The DC Circuit Court Decision on the FCC’s Open Access Order

[Commentary] The DC Circuit Court of Appeals has affirmed the Federal Communication Commission’s reading of Section 706 in the Communications Act, but also determined that the FCC could not extrapolate from that section statutory authority to prohibit Internet service providers from engaging in discriminatory practices, including blocking access to specific content.

This is “damning with faint praise” at its finest, so much so that the author of the decision condescendingly notes that “even a federal agency is entitled to a little pride” when, after losing the first case on network neutrality, the FCC struggled onward to find lawful authority. This decision offers the FCC a generally worthless victory that the commission can lawfully find some statutory basis for jurisdiction over ISPs so long as the responsibilities imposed do not constitute common carriage. The court also does not dispute the FCC’s finding that ISPs have the ability to engage in discriminatory practices. The ability to discriminate does not automatically translate into illegal discrimination particularly when the FCC has determined that discrimination is something only common carriers cannot pursue. The FCC may seize upon the approval of its reliance on Sec. 706 to assert statutory authority to regulate ISPs. However, the FCC will have little latitude and even less deference to craft quasi-common carrier duties on ISPs. One permissible duty would require transparency and full disclosure of non-neutral service arrangements. The commission lawfully can require "truth in billing" by private carriers. Perhaps the potential for consumer pushback in response to disclosed sweetheart deals with corporate affiliates and favored ventures might create a disincentive for ISPs not to go overboard.

[Rob Frieden is Pioneers Chair and Professor of Telecommunications and Law, Penn State University]