Free Press Confident U.S. Court of Appeals Will Uphold FCC’s Net Neutrality Decision

WASHINGTON — Free Press attorneys will go to court on Friday, representing nearly two dozen advocacy groups and tech industry leaders that intervened in the case to defend the Federal Communications Commission’s Net Neutrality order. Appellate litigator Kevin Russell, representing Free Press, the New America’s Open Technology Institute and Public Knowledge, is one of the lawyers who will argue before the U.S. Court of Appeals for the D.C. Circuit.

The FCC’s general counsel and the intervenors will oppose the broadband industry’s legal challenge to the agency’s landmark decision in February 2015 to protect real Net Neutrality. The oral argument is scheduled to begin at 9:30 a.m. on Dec. 4.

On Feb. 26 of this year the FCC voted to reclassify broadband Internet access as a telecom service under Title II of the Communications Act. The rules went into effect in June, using the agency’s authority to prevent Internet service providers from blocking, censoring, throttling or degrading Internet content, services and applications. These rules keep broadband providers from interfering with Internet users’ ability to speak up on issues that matter to them, engage in their communities, start their own businesses, or take part in the online economy.   

Since the Feb. 26 ruling, the broadband industry has engaged in a last-ditch effort — including pushing Congress to add anti-Net Neutrality riders to budget appropriations bills — to restrict the FCC’s ability to protect Internet users.

Free Press Policy Director Matt Wood made the following statement:

“We’re confident the FCC’s ruling will stand up in court because the agency chose the correct legal path to protect the rights Congress gave to Internet users. That path — using the agency’s Title II authority — was clearly delineated by the same U.S. Court of Appeals when it considered earlier rules that were rooted in weak legal theories.    

“The FCC got it right this time. Under Title II, the FCC has the legal tools it needs to treat Internet access providers as the common carriers they so clearly are. Common carriage is integral to the network’s ability to transmit the speech of Internet users without unreasonable discrimination or other forms of interference from their providers. Common carriage extends free speech principles to privately owned networks, promoting connection between networks and Internet users, and encouraging the broadest possible sharing of ideas and opportunities.

“The broadband providers challenging the agency’s decision want you to think the content you see on the Internet is the exact same thing, from a legal standpoint, as the wire that connects you to the Internet. That’s just not the case. Nobody wants their monopoly-minded phone or cable company deciding who you can talk to or where you can go online.

“These providers also want you to think that the First Amendment gives them the freedom to act like the Internet’s editors, with the right to censor all content that crosses their wires. This is a dangerous misreading of the most important free speech protection in the United States. ISPs aren’t like newspaper editors when they transmit our speech. Whether they’re carrying a phone call, a text, an email, a Web search or a video stream, carriers are supposed to enable that connection, not edit its content.

“The law is clear. The FCC returned to Title II in 2015 after 10 years in the wilderness, a period that began in the Bush era when the agency stripped away common-carrier protections. The Internet is open today, and will stay that way under these rules, because the FCC used its clear congressional authority to keep access networks open for all speakers.”