Broadband is a common carrier service, says federal appeals court

by Steve Blum • , ,

It’s all about customer perception.

Call it two and a half out of three. That was the vote by a panel of federal appeals court judges as they tossed out challenges by a wide range of Internet service providers, and ruled that the Federal Communications Commission acted legally when it said broadband is a telecommunications service, rather than an information service, and imposed common carrier regulations on broadband service last year.

Two judges were completely in favor of the new rules, and the third agreed with some of their reasoning but dissented on other points. In a joint decision, the two judges wrote

Petitioners assert numerous challenges to the Commission’s decision to reclassify broadband. Finding that none has merit, we uphold the classification. Significantly, although our colleague believes that the Commission acted arbitrarily and capriciously when it reclassified broadband, he agrees that the Commission has statutory authority to classify broadband as a telecommunications service…

Under [federal law], a service qualifies as a “telecommunications service” as long as it constitutes an “offering of telecommunications for a fee directly to the public.” As explained above…when interpreting this provision in [a previous case], the Supreme Court held that classification of broadband turns on consumer perception…(explaining that classification depends on what “the consumer perceives to be the integrated finished product”).

It’s not a closed case, though. The challengers can ask the appeals court to reconsider its decision, and/or appeal it to the supreme court. Several have said they plan to do just that. In the meantime, the FCC’s common carrier/net neutrality rules remain in effect.

Decision in United States Telecom Association, Et Al. versus Federal Communications Commission and United States of America
Order delaying effect of decision for seven days
(Purely a procedural action, common carrier rules are still in effect.)
Notice of the judgement