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Court strikes down net neutrality: What's next?

The FCC has several options, but many of them aren't likely to prevail

By , IDG News Service
January 14, 2014 04:07 PM ET

IDG News Service - The U.S. Federal Communications Commission and its allies have several options, with most of them difficult, after a U.S. appeals court struck down most of the agency's 2010 net neutrality rules.

The U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday that the FCC did not have the authority to prohibit broadband and mobile service providers from selectively blocking or slowing Web traffic and applications.

With FCC Chairman Tom Wheeler already promising to "consider all available options," it's clear that the net neutrality fight in Washington, D.C., is far from over. Wheeler and Michael Weinberg, acting co-president of digital rights group Public Knowledge, both talked about possibly appealing Tuesday's decision.

However, the chances on appeal are mixed at best. While the court, in Tuesday's ruling, said the FCC has some authority to regulate broadband, this is the second time the appeals court has struck down a specific FCC attempt to enforce net neutrality rules, with the same court ruling in April 2010 that the agency didn't have the authority to order Comcast to stop throttling peer-to-peer traffic in the name of network management.

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Beyond an appeal, the FCC has a couple of other options. With the agency taking its regulatory authority from the Telecommunications Act of 1996, it could go back to Congress and ask for new authority to regulate broadband. But the Republican majority in the House of Representatives has tried multiple times to repeal the FCC's net neutrality rules, and any legislation giving the FCC new authority over broadband providers would have little chance with lawmakers there.

It would take major pressure from the public to force Congress to pass net neutrality legislation, said Lynne Bradley, director of government relations for the American Library Association, which supports strong net neutrality rules. "Hope springs eternal," she said.

The most likely course of action for the FCC is to write new rules that would pass court scrutiny. In Tuesday's court ruling, Judge David Tatel noted that the '96 Telecom Act gives the FCC the "affirmative authority to enact measures encouraging the deployment of broadband infrastructure."

The FCC has "reasonably" interpreted that part of the Telecom Act to "empower it to promulgate rules governing broadband providers' treatment of Internet traffic," Tatel added. But in a somewhat confusing opinion, Tatel appears to suggest that the FCC is limited from regulating broadband mainly because the agency itself has classified broadband as a lightly regulated information service, which is exempted from most regulations in the '96 Telecom Act.

Tatel noted that the FCC's own decision to classify broadband as an information service, and not as a basic telecom service, prevents the agency from applying so-called common carrier rules to broadband.

Tatel's decision threw the rules back to the FCC, leaving open additional action from the agency.

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