Net Neutrality Rules Advance -- But Still Face Potential Court Challenge

The Office of Management and Budget has approved the Federal Communications Commission's net neutrality order, bringing the rules one step closer to reality. The regulations, which ban wired as well as wireless broadband providers from blocking or degrading service, will now be sent to the Federal Register for publication.

They will then take effect 60 days after they are published -- unless Congress or the courts put the kibosh on the regs. Republicans in Congress have vowed to fight the rules, but it's unlikely that the Democratic-controlled Senate would vote to nix them. The courts, however, are another matter.

One federal appellate court has already ruled in a matter involving Comcast that the FCC lacks authority to enforce neutrality regulations. In that case, the court said the FCC lacked the authority to sanction Comcast for violating neutrality principles. The reason stems from a decision the FCC made years ago to classify broadband as an "information" service rather than a "telecom" service.

The ruling spurred neutrality advocates to ask the FCC to recategorize broadband as a telecommunications service. But the FCC didn't heed those calls. The upshot is that the new rules are vulnerable to challenge -- and it's virtually certain that telecoms will mount such a challenge. In fact, Verizon and MetroPCS have already attempted to do so. Their lawsuit was dismissed as premature, but only because the new rules hadn't yet been published in the Federal Register.

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