• by Wendy Davis , Staff Writer @wendyndavis, February 4, 2011

The digital rights group Electronic Frontier Foundation is once againsounding the alarm about the Federal Communications Commission's open Internet rules.

The organization says that it isn't opposed to net neutrality in principle. The problem, says the EFF, is that the Commission can't impose neutrality regulations without first claiming authority over broadband. But once the FCC asserts jurisdiction over the Internet, it might then attempt to regulate the Web more broadly -- such as by imposing indecency rules.

While no one seriously thinks that the current FCC is about to crack down on racy material online, the fear is that the agency is laying the groundwork for future commissioners to do so.

For now, the FCC's rules don't affect online content. Instead, the agency voted 3-2 last December to ban all broadband providers -- wireline as well as wireless -- from blocking sites or competing applications, and to ban wireline providers from engaging in unreasonable discrimination.

Verizon and MetroPCS recently appealed those rules to the U.S. Court of Appeals for the D.C. Circuit, arguing that the FCC acted beyond the scope of its power. That court already ruled in a case involving Comcast that the FCC lacks authority to impose neutrality rules. Given that precedent, many observers -- including the EFF -- think the appellate court will scuttle the FCC's neutrality rules, assuming that the court accepts the case. The FCC argues that the appeal should be rejected as premature because the neutrality rules haven't yet been published in the Federal Register.

The EFF's concerns raise the question of whether the FCC can find a way to impose neutrality rules without also paving the way for censorship in the future.

The obvious answer -- one that neutrality advocates have strenuously urged, but the FCC has so far failed to implement -- is to reclassify broadband access as a Title II telecommunications service. Doing so would appear to give the FCC the limited authority it needs to impose the common carrier rules on Internet service providers, but without also opening the door to broad FCC regulation of the Web.