Appeals Court Strikes Down FCC’s Net Neutrality Standards

by Matt Klassen on January 15, 2014

A U.S. Federal appeals court has struck down the Federal Communication Commission’s rules for Net Neutrality regarding the equal treatment of all broadband network traffic, striking yet one more blow against the beleaguered and impotent bureaucratic entity as it tries in vain to bring some semblance of order to a telecommunications industry gone wild.

The 2-1 court ruling in Verizon v. FCC, the telecom giant’s challenge to Net Neutrality standards established back in 2010, once again calls into question the FCC’s authority to dictate network management standards; effectively doing away with all protocols the FCC has put forth regarding network discrimination and arbitrary blocking. The court did uphold the FCC’s disclosure requirements, however, meaning that while carriers can now favour or throttle network traffic whenever they see fit, they at least have to tell subscribers about it.

As it has always been, the problem here is not that the court opposed the FCC’s goals for creating an Open Internet, but simply that the court has once again found no legal grounds for the commission to impose such standards. As Free Press president Craig Aaron explains, “The FCC — under the leadership of former Chairman Julius Genachowski — made a grave mistake when it failed to ground its Open Internet rules on solid legal footing…Internet users will pay dearly for the previous chairman’s lack of political will.” I couldn’t agree more.

Almost a year to the day since I last mentioned Net Neutrality and three years since I wrote an open letter to then chairman Julius Genachowski about his Commission’s attempts to sue Comcast for network throttling, and it seems like everything has gone according to plan…well, not my plan or the FCC’s plan, but certainly that of the wireless industry. Over the last three years we’ve seen the same story played out over and over: the FCC tries to impose standards on Internet providers, the Internet providers complain, the court strikes down the FCC’s attempts, the FCC tries something slightly different…rinse and repeat.

As I mentioned, in none of these defeats have the courts opposed the FCC’s Net Neutrality goals, they have simply taken issue with the lack of legal grounding he FCC has to dictate such standards to the telecommunications industry. In this case the appeals court found that unlike traditional telecommunications providers, ISPs aren’t considered to be “common carriers,” those required to pass information through their networks without discrimination. Simply put, Net Neutrality is all well and good; it just doesn’t apply to the industry it was designed to help manage.

But again, that’s really nothing new. Supporters of Net Neutrality, such as myself, have been calling for the FCC to change its tactics for years now, calling for Net Neutrality standards to go before Congress while decrying the fact that the FCC continues to become increasingly unable to effect any change with each subsequent defeat in this matter.

In fact, Judge David Tatel, who presided over this case, recognizes that the FCC’s standards are necessary, just not legal (yet). “The commission has adequately supported and explained its conclusion that absent rules such as those set forth in the Open Internet Order, broadband providers represent a threat to internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment,” adding that carriers do have “powerful incentives” to charge more for prioritized access or block certain traffic.

For his part, current FCC chair Tom Wheeler said that the agency would continue the fight, although it remains unclear what that means. “I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment. We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”

Now its time for Congress to take an active role in user protection and Internet regulation, passing laws that will give the FCC the authority to govern broadband networks, but of course we all know how that’ll turn out.

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Written by: Matt Klassen. Follow by: RSS, Twitter, Facebook, or YouTube.

{ 2 trackbacks }

The FCC Finds Landslide Victory in Crushing Defeat —
January 24, 2014 at 5:39 am
FCC Charts New Path for Net Neutrality —
February 20, 2014 at 5:32 am

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