The decision by the US Court of Appeals for the District of Columbia Circuit not to grant a full court rehearing of the Title II reclassification decision isn’t a victory for net neutrality, despite the ballyhoo that’s making its way around the internet.
It’s also not a defeat for net neutrality. In reality, it’s simply a procedural action in which the court recognizes that such a full hearing would likely be a waste of time given the Federal Communications Commission announced plans go back to regulating the Internet under Title I of the Communications Act.
The action by the FCC, then led by former FCC chairman Tom Walker, to reclassify internet providers as common carriers under Title II of the Communications Act had been challenged in court, but the Court of Appeals found that the agency did have the authority to carry out the reclassification. The court did not find for or against net neutrality as policy and the May 1 decision does nothing to change that.
The majority decision not to rehear the case was based on the announcement by the FCC to change the reclassification, but there were other issues at play as well, including the presidential interference with an independent agency and the fact that the FCC changed course suddenly with little explanation after receiving comments based on the likelihood of net neutrality legislation.
There were three dissents to the decision based on a variety of legal disagreements. These judges who supported the rehearing indicated they thought the initial decision was wrong in deciding that the FCC had the right to make the change to Title II, or because they thought other arguments were equally compelling.
One thing was clear, however. All of the judges agreed that the FCC could roll back the reclassification either because it had the right as an expert agency to make the decision, or because they never should have gone to the Title II direction in the first place.
FCC Chairman Ajit Pai noted in a prepared statement that he wasn’t surprised at the outcome. “In light of the fact that the Commission on May 18 will begin the process of repealing the FCC’s Title II regulations,” Pai said in his prepared statement, “it is not surprising, as Judges Srinivasan and Tatel pointed out, that the D.C. Circuit would decide not to grant the petitions for rehearing en banc.”
“Their opinion is important going forward, however,” Pai continued, “because it makes clear that the FCC has the authority to classify broadband Internet access service as an information service, as I have proposed to do.”
The decision by the appeals court may not be final. TechFreedom, the non-partisan technology think tank, was the only intervenor in the case and that group wants the decision on reclassification to be heard by the US Supreme Court.
“It might motivate the democrats to come to the table,” explained TechFreedom communications director Evan Swarztrauber. Swarztrauber said that he worries that the classification of the internet swinging between Title I and Title II will continue if the next administration is a Democratic one. Right now, he says, the two sides are locked into a partisan divide.
“There’s no dialog right now,” Swarztrauber explained. What’s worse, he said is that there doesn’t seem to be any interest in a dialog about how the internet should be classified. “Politics is the reason why we don’t have resolution. One side can use it to beat the other side’s head.”
Both sides of the net neutrality question have hardened their position so that compromise is unlikely, Swarztrauber said. “It’s almost become a religious war,” he said.
The problem with religious wars about technology is that there are no winners. We’re already seeing both sides of the whole Title II issue taking extreme positions and refusing to admit that there’s a reason for any other position. To make matters worse, those religious factions are based on ideas that are simply wrong.
Title II reclassification, for example, is assumed by its proponents to guarantee internet freedom and net neutrality. But it doesn’t. The internet’s position within Title II is so impacted by forbearances that its legal justification is dubious. Worse, those forbearances are a creature of the FCC, which can change them for better or worse at its whim.
Forbearances are regulations that the FCC agrees not to enforce, including portions of Title II. Examples would be rules aimed at telephone service providers such as requirements for operator services or handling of obscene phone calls that aren’t relevant to internet services.
Worse for the Title II backers, a number of legal authorities, including those dissenting judges, are suggesting that what the FCC was doing consists of forbearance abuse and that many of the forbearances aren’t actually legal.
Those forbearances were created as a part of the Title II reclassification in early 2015 as a way to shoehorn the internet into a model designed for circuit-switched networks. But the fit was not an easy one, and there are many questions raised about the way the forbearance issue was handled in the first place.
But the Title I proponents are also missing a critical part of the picture that isn’t around this time. When this all started, there was strong support for bipartisan legislation that was ready for certain passage, and which would give the FCC its statutory basis for net neutrality. Without that, Title I will only lead to more court challenges and this time there’s no indication that Congress is in a mood to do anything that’s bipartisan.
This leaves the public in the worst possible position. There are two sides playing a game of regulatory chicken. When that happens, there will be no winner, but the internet users will certainly be worse off.