Commentary

FCC Mulls Neutrality Options In Light Of Legal Defeat

Still reeling from this week's court ruling, which said that the Federal Communications Commission has no authority to enforce net neutrality principles, the FCC is already warning that it might not be able to carry out aspects of the national broadband plan.

General Counsel Austin Schlick says in a blog post that the decision might have rendered the FCC powerless to execute a host of recommendations, including ones that are aimed at protecting consumers.

In the decision, a federal appellate court vacated an FCC order sanctioning Comcast for throttling peer-to-peer traffic on the grounds that the FCC has no authority to enforce neutrality principles. This means that the FCC can't prevent Internet service providers from blocking visits to sites like Hulu or Google, should ISPs decide to do so.

The FCC hasn't yet announced its next move, but advocates are pushing the agency to reclassify broadband as a "Title II" telecommunications service, in which case ISPs would be required to follow common carrier principles.

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In 2002, the Bush administration FCC reclassified broadband as an information service. That move, part of a deregulation initiative, was upheld by the U.S. Supreme Court in 2005.

Any attempt by the FCC to reverse course will certainly be met with opposition in court as well as political opposition. Even before this week's decision, telecoms and cable companies urged the FCC to "keep this Pandora's Box of Title II classification nailed shut." They also warned that a reclassification of broadband would "plunge the industry into years of litigation and regulatory chaos."

Nonetheless, some consumer advocates say that the FCC can legally change its mind and restore broadband's former classification as a telecommunications service as long as it has a "reasoned basis" for doing so.

Advocates say that a Supreme Court decision issued last year in a profanity case gives the FCC solid legal footing for reclassifying broadband.

In that matter, Fox and other TV broadcasters sued the FCC for ruling in 2006 that the broadcast of "fleeting expletives" -- swearing by celebrities on live TV -- was indecent. The broadcasters argued that the FCC had taken the opposite position prior to 2004, and that its about-face on the issue was unfair.

But the Supreme Court rejected that argument, holding that the FCC was free to issue new policies that contradicted prior ones as long as it has a good reason for doing so.

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