Dawn Brotherton Jun. 28, 2016, 11:41am


WASHINGTON (Legal Newsline) — A Utah attorney calls the decision in United States Telecom Association, et al v. Federal Communications Commission and United States of America a “slam-dunk win for consumers.”

The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling this month that upheld the Federal Communications Commission’s (FCC’s) 2015 Open Internet Order. The order classified broadband internet access service as a “telecommunications service” rather than “information services.” 

The classification increased the regulations for providing broadband service. The case revolved around a doctrine called “net neutrality.” 

David J. Shaw, shareholder and co-chair of the Government and Utilities Practice Group at Kirton & McConkie, spoke with Legal Newsline about the ruling, and what it means for consumers and businesses.

“The one thing that is certain is that the large owners who own content will not be able to put their content before anyone else’s (content)," Shaw said. "Net neutrality is the proposition that all traffic is treated the same.”

Net neutrality is the legal theory that prohibits an internet provider from blocking content to consumers in favor of its own content. For example, Comcast cannot support programming on NBC, its affiliate, over that of ABC or CBS.

Shaw represents many municipalities that provide broadband to its citizens, and he says “net neutrality is an irrelevant concept when there’s sufficient capacity. It’s really an issue of scarcity.” 

If all households had access to broadband, the net neutrality concept would become archaic, he said. Until that time, the FCC should step in and protect consumers, he added. 

The petitioners in the case argued that the FCC did not have the legal authority to reclassify broadband service, but the court disagreed. Judges David Tatel and Sri Srinivasan wrote, “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.” 

The colleague noted is Judge Stephen Williams, the dissenting vote.

The impact of the decision remains to be seen. Matt Wood, policy director of Free Press, a nonpartisan organization fighting for a free and open internet, spoke with Legal Newsline about the effects of the court’s decision.

“Not a lot is going to change,” Wood said. “The market has changed. Companies are becoming more about content. This decision keeps the legal framework in place to (protect consumers).

“What this case got right was that the FCC treats broadband as an essential communication tool and erased the legal distinctions between the network and content."

Wood iterated that “data caps might be anti-consumer laws, but they aren’t net neutrality. This case was about the carrier’s duty to (the consumer).”

Consumers often choose to use third-party content, services and applications, rather than taking advantage of provider content. The ruling upholds the consumer’s right to choose which content they use for news, movies, music and shopping.

US Telecom can appeal the decision to the U.S. Supreme Court.

“I wouldn’t be surprised if Hollywood and the network owners did appeal,” Shaw said. “It’s a case to watch.”

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