Court Gets it Right on Net Neutrality

June 16, 2016

By Ernest Worthman

Executive Editor
AGL Small Cell Magazine

It has been a while since all the furor over net neutrality. Those of you who have read my previous missives know I am a big fan of it. Imagine how happy I am that the U.S. Court of Appeals, District of Columbia Circuit, upheld the legal authority behind the FCC’s Open Internet Order. The court was smart enough to see through the argument that says the order violates the First Amendment rights of ISPs; interesting.

ISPs are simply conduits. They are faceless entities that provide a pipeline that connects whatever the consumer wants – just like a telephone line. So, technically they do not come under that amendment since they have no effect on the material being delivered.

The Supreme Court has repeatedly cautioned that common carriers do not share the free speech rights of broadcasters, newspapers, or others engaged in First Amendment activity. ISPs are in that group.

In this ruling the court put it this way: “Petitioners and their amici offer various grounds for distinguishing broadband service from other kinds of common carriage, none of which we find persuasive,” the court wrote. “Telegraph and telephone networks similarly involve the transmission of speech. Yet the communicative intent of the individual speakers who use such transmission networks does not transform the networks themselves into speakers. Bingo! ISPs are just dump pipes and will never be anything else.

The court called this right. However, this isn’t the end of it, to be sure. The companies that brought the lawsuit are highly likely to appeal to the Supreme Court and will continue to pressure and put money into our esteemed congressional representatives to change the laws.

It is interesting that CTIA’s CEO Meredith Attwell Baker said, “For the U.S. to remain the global mobile leader, we need rules that help promote consumer access to 5G and the Internet of Things without subjecting the wireless industry to investment-chilling public utility regulation. In the interim, we urge the FCC to support innovative new services, like free data, that benefit consumers and reflect the highly competitive mobile market.” Hmmm…well, I guess that is to be expected from the CTIA, which has become largely a consumer cellular agency and gets most of its support from the cellular industry. I can’t wait to hear what the TIA has to say but I’ll bet it isn’t far from the CTIA’s position. But the bottom line here is that the consumer won this round.