• by Wendy Davis  @wendyndavis, January 14, 2014

A federal appellate court on Tuesday gutted the Federal Communications Commission's 2010 Net neutrality regulations, which prohibit broadband providers from blocking lawful content and services.

The D.C. Circuit Court of Appeals said in its opinion that the open Internet regulations violate the Communications Act by effectively imposing common carrier requirements on broadband providers. The FCC can't treat broadband companies as common carriers because the agency classifies broadband as an “information” service and not a “telecommunications” service, the appellate court said in its opinion.

“We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers,” the appellate panel wrote.

In the 1990s, when most people accessed the Web through dial-up services, the FCC classified Internet service as a telecommunications service. But the agency issued a series of rulings in the early 2000s that re-categorized broadband as an information service.

The now-invalid regulations banned all broadband providers -- wireline as well as wireless -- from blocking sites or competing applications. The regulations also prohibited wireline providers from engaging in unreasonable discrimination. A divided FCC passed the regulations by a 3-2 vote in December of 2010, but they didn't take effect until 2011.

Verizon challenged the rules in court, arguing that the FCC exceeded its authority by attempting to regulate broadband. The appeals court rejected Verizon's position that the FCC lacked all authority over broadband; the court upheld a portion of the neutrality rules that require broadband providers to disclose their traffic management practices. But the court agreed with the telecom on the key issue -- that the FCC's anti-blocking and anti-discrimination rules are unlawful.

FCC Chairman Tom Wheeler said in a statement that the agency is considering its options. “I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment,” Wheeler stated. “We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”

Given that the court's opinion hinges on the FCC's decision about how to classify broadband, some neutrality advocates are already calling on the agency to reclassify Internet access as a telecommunications service.

"People depend on the Open Internet to connect and communicate with each other freely,” former FCC Commissioner Michael Copps stated. “Voters need it to inform themselves before casting ballots. Without prompt corrective action by the Commission to reclassify broadband, this awful ruling will serve as a sorry memorial to the corporate abrogation of free speech," added Copps, who serves as an adviser to Common Cause.

Sen. Ed Markey (D-Mass.), also a longtime Net neutrality proponent, said on Tuesday that he plans to introduce legislation aimed at prohibiting Internet service providers from blocking content and services. “We must ensure that as the Internet continues to evolve, it remains a level playing field guided by the principles of openness and competition,” he stated.

The industry group CTIA-The Wireless Association said that Tuesday's ruling “does nothing to temper CTIA members’ long-standing commitment to an open Internet and a vibrant wireless ecosystem because that’s what wireless customers demand.”

The organization added that policymakers “should exercise caution before adding any additional regulation to this area, particularly given the fundamental technical and operational challenges facing mobile broadband providers and the robust competition to attract and retain customers.”