Can ISPs simply opt out of net neutrality?

Author: Daniel Lyons
Coverage Type: op-ed
American Enterprise Institute (AEI), 1150 Seventeenth Street, Washington, DC, 20036, United States

[Commentary] The DC Circuit denied a petition to rehear en banc its 2016 decision upholding the Federal Communications Commission’s Open Internet Order. The Supreme Court is not likely to hear the case, but while the Justices may not be listening, the telecom policy community should be. The concurrence and dissents engaged in a lengthy and scholarly discussion about broader constitutional and administrative law doctrines raised by the order.

In the process, the concurrence signaled that the DC Circuit may understand the order to apply far more narrowly than anyone expected. The DC Circuit appears to view the Open Internet Order primarily as a hyper-transparency rule: If the company claims to offer an unedited internet experience, then it is required to deliver on that promise. The DC Circuit suggests that a walled garden is fine as long as the provider “mak[es it] sufficiently clear to potential customers that it provides a filtered services involving the ISP’s exercise of ‘editorial intervention.’”


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