The FCC Finds Landslide Victory in Crushing Defeat

by Matt Klassen on January 24, 2014

The Federal Communications Commission may have been dealt a stiff blow in federal court last week when it comes to enforcing its controversial Net Neutrality standards, but a closer look at the ruling reveals that the FCC may have come out of this with more power to govern the Internet than ever before…power that even supporters of an Open Internet may not be comfortable with.

As CNET’s consumer advice columnist Marguerite Reardon explains, while the decision by the U.S. Court of Appeals was initially seen as a defeat for the FCC, removing its authority to enforce its Net Neutrality rules and severely hamstringing its Open Internet initiative, “the simple truth is that last week’s decision marked a big victory for the FCC.”

But how can that be, given the fact the FCC wasn’t able to defend the first legal challenge to the Net Neutrality framework it established in 2012? Simply put, while the courts determined the FCC has based its Net Neutrality standards on a faulty foundation, the courts provided the Commission with the proper way forward, giving the FCC the most important victory of all: the authority to set Open Internet standards in the first place.

In this most recent court case, FCC v Verizon, America’s largest telecommunications provider challenged the FCC’s ability to create and enforce Net Neutrality standards. On the face of it Verizon won that fight, as the appeals court struck down the FCC’s proposal on the grounds that it didn’t apply to Internet providers, at least not in its current form.

That said, while it was found that the FCC’s Net Neutrality standards were grounded in a faulty foundation, the court provided the FCC a blueprint to alter its approach so its rules would stick. More importantly, on the issue of whether the FCC even has the authority to establish such rules the FCC actually won, giving the Commission what some are calling “unlimited authority to regulate almost every aspect of the Internet.”

“The FCC has far more power than it did before this decision,” said Harold Feld, senior vice president with Public Knowledge, a nonprofit that says it’s devoted to preserving the openness of the Internet. “Before it was always unclear what the FCC’s limitations were.”

Simply put, before this decision was levied there was confusion about the role of the FCC in governing the Internet, haziness about what the Commission could, would, and should do. But as Reardon explains, following the court’s decision that role is crystal clear: “the FCC and even local public utility commissions can now impose regulations on the Internet, overriding any local or state laws that may forbid such regulation.”

On the face of it the decision by the court seems to have given the FCC a framework to establish carte blanche control over the Internet, giving the Commission the ability to create and enforce an industry wide standard, a level of power that has even me a little concerned.

But have no fear; the FCC has no intention of using this newfound authority to over-regulate the industry. In a blog post published last week, FCC chairman Tom Wheeler reassured all concerned that the FCC is “not going to take over the Internet,” or “dictate the architecture of the Internet.” Phew, good thing no bureaucratic entity has ever reneged on such promises before…

In the end I’ll admit that I’ve never had much faith in the FCC, finding myself more frustrated than satisfied with the Commission’s various decisions over the last several years, so perhaps I’m justified in being a little concerned that in this Net Neutrality debate it seems I’ve got everything I’ve asked for…and so much more.

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Congress Seeks Temporary Respite in Net Neutrality Fight —
February 5, 2014 at 5:30 am

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