Commentary

In Blow To Advocates, D.C. Court Chosen For Neutrality Battle

The U.S. Court of Appeals for the District of Columbia Circuit will determine whether the Federal Communications Commission's new neutrality rules are legal, a judicial panel said this week.

That news doesn't bode well for the controversial neutrality rules, because the court in D.C. has already ruled that the FCC isn't able to enforce open Internet principles. A three-judge panel of that court said last year that the FCC shouldn't have sanctioned Comcast for throttling peer-to-peer traffic. The FCC lacked authority, the court ruled, because it had earlier classified broadband as an information service, not a telecommunications service.

The net neutrality regulations passed last year are almost certainly vulnerable for the same reason: The FCC didn't reclassify broadband before enacting them.

Neutrality advocates tried to improve their odds of having the case heard by a different court by filing their own challenges to the FCC's order. Free Press brought a case in the 1st Circuit, while Media Access Project filed cases in the 2nd Circuit, 4th Circuit and 9th Circuit. Those groups said the FCC's rules -- which impose fewer restrictions on wireless providers -- aren't strong enough.

Verizon, which aims to block the rules, sued in the Court of Appeals for the D.C. Circuit.

The rules themselves largely preserve the status quo -- at least for wireline providers. The regulations prohibit wireline providers from degrading or blocking traffic and also appear to prohibit them from agreeing to prioritize content for companies who pay extra. The regulations ban wireless providers from degrading or blocking traffic and competing apps, but apparently leave them free to forge deals with content providers.

1 comment about "In Blow To Advocates, D.C. Court Chosen For Neutrality Battle".
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  1. Robert Repas from Machine Design Magazine, October 7, 2011 at 3:44 p.m.

    It always bothers me when reports state something like "The FCC lacked authority, the court ruled, because it had earlier classified broadband as an information service, not a telecommunications service," as if it was the same FCC. It was a Republican-controlled FCC catering to their telecom contributors that reclassified the Internet in 2005 as an information service. Prior to that, the Internet had enjoyed the protection of the Title II "Must carry" regulations...and that wasn't stifling its growth one bit. The Internet was, is, and always has been a telecommunication service -- it facilitates conversations between two or more individuals through social media, VoiP, texting, and now, thanls to companies like Apple, picture phones. Information services are one way, without give-and-take dialogs except for simple requests for information. Yes, the Internet does that, too...but so can a telephone and it's Title II. Let's get the Internet back where it belongs, as a telecommunication service.

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About the Author

Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com