Don’t worry about this court case the FCC is so excited about
Just a quick PSA. FCC Chairman Ajit Pai just issued a statement in support of a federal court agreeing to re-hear a certain case that does, in fact, have a bearing on net neutrality. But while in other situations a triumphant Pai would be a warning to internet advocates, this time it’s okay.
Here’s why. The case in question had to do with the FTC alleging some shenanigans on the part of AT&T regarding unlimited rate plans — but, crucially, the alleged actions took place before the 2015 Open Internet Order that reclassified AT&T as a common carrier and transferred regulatory authority to the FCC.
Still awake? Good. Basically AT&T argued in this case that because it was offering voice services, it was a common carrier even when it was offering data services — and thus, not even under the authority of the FTC in the first place, but the FCC, which governs telephony. That’s not really how it works — the telecom part of a business is usually regulated separately from the rest — but companies like AT&T will say anything to escape responsibility for their actions.
Surprisingly, the court decided in favor of AT&T, setting a broad precedent that any company that offers any kind of telecommunications service — yes, any — is itself a telecommunications company, and subject to the stringent “Title II” net neutrality rules of the FCC.
Now, even net neutrality advocates don’t want that. Because that means that, for instance, Google is a telecom because it offers fiber. Maybe Facebook is too, because you can do voice chat in Messenger. What about Microsoft, with Skype? Probably a telecom too. No one really knows, because this decision, by an incomplete set of judges at D.C.’s 9th Circuit Court, was so weird.
There were petitions from every direction to rehear the case “en banc,” meaning with all judges present, and the court today said (PDF) that’s probably a good idea. The previous decision, the order says, shall not be cited as precedent. Chances are it’ll be overturned, because it would be absolute chaos if it weren’t.
You can thank AT&T for all this nonsense, by the way. It was their shady unlimited plans that started this thing, and their ridiculous argument for how it (and by extension everyone else) should be considered a telecom.
(Note: This is different from the other 9th Circuit en-banc rehearing case, which sent opponents of net neutrality a sound whipping.)
Keep this foolishness on the part of carriers (and the eagerness to be classified under Title II, which they are now fighting tooth and nail) in mind as the net neutrality argument goes forward.