(2014-01-15) Net Neutrality Struck Down

The D.C. Circuit Court of Appeals just issued its long-awaited decision striking down the FCC’s Net Neutrality rule. This is the second time in four years that this court struck down the FCC’s attempt to adopt a network neutrality rule. It is now legal for AT&T or Verizon to block Slate, your blog, or any other site... Everyone knew we were going to lose this case... That decision, called ComCast v. FCC, made it clear what the FCC would need to do to have the jurisdiction to try again to enforce network neutrality. Congress gave the FCC the power to regulate “telecommunications services” (Title II) (which many believe include the Internet services provided by cable and phone companies) but not “information services” (Title I) (which everyone agrees includes Twitter, Google, and other services riding on top of the Internet lines). That is, the FCC can regulate cable and phone networks but not apps and websites. The deregulatory FCC of 2002, however, had a chairman (Michael Powell) who is now the head lobbyist for the CableCo industry, and he succeeded in removing regulations for the cable industry by classifying cable Internet as an “information service,” the category for Twitter and Slate. The court was unimpressed: If the FCC wanted to regulate cable companies but not Twitter and Slate, it had to put them in different categories, or else the FCC could start regulating Twitter and Slate... All the FCC had to do back in 2010 was clarify that Internet service offered by cable and phone companies is a “telecommunications service,” and to “reclassify” it as such. That would require reversing a few of the earlier orders but would have likely been upheld in court... Even though he and his general counsel promised to reclassify Internet service, Julius Genachowski essentially caved as the cable and phone companies unsurprisingly continued to oppose network neutrality... The current FCC chairman, Tom Wheeler, is highly regarded, but some distrust him because he is the former head lobbyist of both the cable and wireless phone industries.

Harold Feld gives his summary.