“The key here is not whether Broadband Internet Service Providers utilize telecommunications; it is instead whether they do so while offering to consumers the capability to do more,” Griffin wrote, concluding that “they do.”
“The FCC exceeded its statutory authority,” Griffin wrote, at one point accusing the FCC of arguing for a reading of the statute “that is too sweeping.”
The three-judge panel ordered a stay of the FCC’s order imposing net neutrality rules—known as the Safeguarding and Securing the Open Internet Order.
In a statement, FCC chair Jessica Rosenworcel suggested that Congress would likely be the only path to safeguard net neutrality moving forward. In the federal register, experts noted that net neutrality is critical to boosting new applications, services, or content, warning that without clear rules, the next Amazon or YouTube could be throttled before it can get off the ground.
“Consumers across the country have told us again and again that they want an Internet that is fast, open, and fair,” Rosenworcel said. “With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open Internet principles in federal law.”
Enlarge/ FCC Chairwoman Jessica Rosenworcel and FCC Commissioner Brendan Carr arrive to testify during a House committee hearing on March 31, 2022, in Washington, DC.
Getty Images | Kevin Dietsch
A federal court on Friday temporarily stayed enforcement of net neutrality regulations but has not decided on the merits of a telecom-industry request to block the rules on a longer-term basis.
The Federal Communications Commission’s revived net neutrality rules were scheduled to take effect on July 22. But the US Court of Appeals for the 6th Circuit needs more time to consider the industry motion to block the rules and wants the parties to file supplemental briefs. As a result, the FCC can’t enforce the rules until at least August 5.
“To provide sufficient opportunity to consider the merits of the motion to stay the FCC’s order, we conclude that an administrative stay is warranted. The FCC’s order is hereby temporarily stayed until August 5, 2024,” the court said on Friday.
The administrative stay is due in part to the 6th Circuit Court’s consideration of Supreme Court precedent. The Supreme Court’s decision last month in Loper Bright Enterprises v. Raimondo limited the regulatory authority of federal agencies by overturning the 40-year-old Chevron precedent. Chevron gave agencies leeway to interpret ambiguous laws as long as the agency’s conclusion was reasonable.
Briefs on Brand X
The telecom industry and FCC already filed briefs on the impact of Loper Bright. But the 6th Circuit wants supplemental briefs on a related topic.
Chevron deference was crucial in the 2005 Brand X ruling that has repeatedly played a role in cases over the FCC’s ability to regulate net neutrality. Brand X allowed the FCC to classify cable Internet as a lightly regulated information service. The precedent helped the FCC win court cases both when the Obama-era commission implemented net neutrality rules and when the Trump-era commission repealed those same rules.
On Friday, the 6th Circuit said the judges’ panel considering the present case “would be grateful for supplemental briefs by the parties with respect to the application of stare decisis and National Cable & Telecom. Ass’n v. Brand X Internet Servs., to this dispute, filed no later than July 19, 2024.” (Stare decisis is the “doctrine that courts will adhere to precedent in making their decisions.”)
The Supreme Court overturning Chevron doesn’t automatically nullify Brand X. The Supreme Court said in the Loper Bright ruling that “we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.”
The telecom industry and FCC briefs on Loper Bright both discussed Brand X, but the judges evidently want more on that topic. The 6th Circuit’s administrative stay was handed down by Chief Judge Jeffrey Sutton, Judge Eric Clay, and Judge Stephanie Dawkins Davis. Sutton was appointed by George W. Bush, while Clay is a Clinton appointee, and Davis was appointed by Biden.
FCC lost motion to move case
The administrative stay doesn’t necessarily signal anything about how the 6th Circuit judges will rule on the merits. But telcos did already win one ruling when the court rejected a motion to transfer the case.
Previous net neutrality cases were decided by the US Court of Appeals for the District of Columbia Circuit. This time, the 6th Circuit was randomly selected to hear the case in a multi-circuit lottery after telco lobby groups filed suit in seven circuits.
The FCC sought to transfer the current case to the DC Circuit, which ruled in the agency’s favor in the previous cases. The 6th Circuit denied the motion on June 28.
“When considering a motion to transfer a multi-circuit petition, we give considerable weight to our selection in the lottery. That lottery system would not mean much if a party disappointed by the luck of the draw could transfer the case to its preferred forum,” the court said.
Though the DC Circuit handled previous similar cases, the 6th Circuit said this is not merely a continuation of the earlier cases. The court also made a point of referring to the FCC repeatedly changing its position on whether broadband should be regulated as a common-carrier service.
“The DC Circuit has some familiarity with the legal classification of broadband through its consideration of prior FCC orders,” the 6th Circuit panel said. “But the FCC’s vacillating positions on the proper classification of broadband demonstrate that the prior orders do not represent the staggered implementation of a single undertaking. And, as the DC Circuit itself has explained, ‘general familiarity with the legal questions presented by a case is decidedly different from acquaintance with the proceedings that gave rise to the order in suit.'”
AT&T is now charging mobile customers an extra $7 per month for faster wireless data speeds. AT&T says the Turbo add-on, available starting today, is “built to support high-performance mobile applications, like gaming, social video broadcasting and live video conferencing, with optimized data while customers are on the go.”
While Turbo “boosts all the high-speed and hotspot data on a user’s connection,” AT&T said the difference will be more noticeable for certain kinds of applications. For example, gaming applications using Turbo will experience “less freezing or stuttering and lower latency,” AT&T said.
The $7 charge is for each line. Adding Turbo to multiple lines on the same account requires paying the extra fee for each line. AT&T said that Turbo lets users “optimize their plan’s high-speed (premium) and hotspot data allotments” and provides better data performance “even during busy times on the network.”
Turbo is only available for 5G phones on certain “unlimited” plans. AT&T notes that “Turbo does not provide extra data” and that “if you exceed your existing allotments your normal network management applies.”
“On AT&T Unlimited Extra EL after 75GB, AT&T may temporarily slow data speeds if the network is busy,” the company says. “On each eligible plan, after you exceed your hotspot allotment, your hotspot speeds are slowed to a maximum of 128Kbps.”
People who pay extra for Turbo might want to look at their video settings. By default, AT&T limits video streaming to DVD quality, but customers can turn on high-definition video at the expense of using more data.
Quality of service
An article by The Mobile Report said that AT&T will differentiate between users who pay for Turbo and those who don’t with Quality of Service Class Identifiers, or QCIs. “We’re told that, basically, all eligible plans are now moved to QCI 8, and get the privilege of buying their way back into QCI 7,” the article said. QCI 6 is reportedly reserved for public safety professionals on the FirstNet service built by AT&T under a government contract.
AT&T confirmed to Ars today that Turbo “is assigned to a QCI to which some of our consumer traffic was previously assigned.” But AT&T said it has “materially modified it and increased network resources and relative weighting for AT&T Turbo traffic, thereby creating a higher level of performance than we’ve ever before offered to consumers.”
AT&T also said that QCIs “are simply a number assigned to a class of service,” and that the “treatment and performance of traffic in a particular class is affected by a range of variables that can be tuned to provide different experiences.” AT&T said that last summer, it “rationalized and streamlined how our plans are mapped to QCI levels” and that “these changes helped optimize network performance for our overall customer base.”
The current version of Turbo may be followed by other paid extras that enhance performance, as AT&T called it the “first step in modernizing and preparing our mobile network for future innovative use cases… Latency-sensitive applications will continue to need more enhanced network technologies to perform their best, so we plan to continue to advance and evolve AT&T Turbo.”
