Net Neutrality Is Back In The Courts

Feeling a bit of déjà vu? You may have thought net neutrality was settled following our historic February 2015 victory, when the Federal Communications Commission (FCC) issued light-touch rules to protect creators, small businesses and Internet users. But Big Telecom still has a dog in this fight, and it’s a big dog with lots and lots of money.

A number of Internet Service Providers (ISPs) have filed nine—nine!!!—lawsuits to overturn the the FCC’s Open Internet Order. Today, (Friday, December 4, 2015), a three-judge panel representing the D.C. Circuit will hear oral arguments in the case. One of those three judges, David Tatel, has a not-so-great record on net neutrality—the past two times that he ruled on the issue, he took positions that would let just a handful of massive corporations pick winners and losers online. In 2010, Tatel wrote the majority opinion that let Comcast off the hook for deliberately degrading traffic on its network. When the FCC issued its original net neutrality rules that same year, Verizon sued, and the majority of these crucial protections were scrapped in 2014 by (you guessed it) Tatel. 

However, net neutrality proponents like us are hopeful about this latest legal brouhaha. The newly-amended FCC Order is tailored to Tatel’s 2014 opinion; one of the reasons FMC and our allies pushed so hard for “reclassification” of broadband service under Title II of the Communications Act is that this approach has the strongest chance of succeeding in the courts. 

There is a ton at stake if the rules are struck down again. ISPs could favor certain content creators over others based on their preferred commercial relationships (or even political preferences), carving the Internet into haves and have-nots. Independent creators and creative entrepreneurs (including musicians) could find themselves stuck on a dirt road while the deep-pocketed cruise by on gleaming superhighways.

Meanwhile, some in Congress remain stubbornly confused about what neutrality is and what it does but are all too happy to interfere in unproductive ways. Some congressional leaders have threatened to include a “rider” in a must-pass appropriations bill that would effectively prevent the FCC from enforcing net neutrality rules. As Sandra Fulton of Free Press notes, “We worked too hard for that win to let anyone undo it—let alone in secret. Real leaders don’t resort to these kinds of dirty tricks.” 

FMC has been fighting for net neutrality since before the concept even had a name.  We helped cultivate a long list of musicians who told FCC Chairman Tom Wheeler we’d have his back if he did the right thing. Well, we’re holding to that promise, no matter what legislative shenanigans or wasteful lawsuits lie ahead.

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