• by Wendy Davis , Staff Writer @wendyndavis, January 15, 2014

This week's court ruling invalidating net neutrality -- and paving the way for broadband providers to block content from competitors -- has resulted in a lot of finger-pointing aimed at former Federal Communications Commission Chairman Julius Genachowski.

Why is the blame falling on Genachowski? The answer is simple: He pushed his colleagues on the FCC to pass open Internet regulations -- which broadly prohibit Internet service providers from blocking sites or discriminating against content companies -- but didn't first reclassify broadband as a telecommunications service. Instead, the FCC left in place prior rulings that categorized broadband as an “information” service. Doing so was an obvious mistake, considering that a federal appellate court ruled in 2010 that the FCC didn't have authority to require information services to follow neutrality rules.

“Even though he and his general counsel promised to reclassify Internet service, Genachowski essentially caved,” neutrality expert and New America Foundation fellow Marvin Ammori writes in Slate. Ammori adds that the FCC's neutrality rules were the result of a deal between the agency and AT&T -- which never challenged the regulations. Those rules imposed weaker neutrality standards on mobile providers than wireline carriers; worse, the regulations couldn't hold up in court, given that broadband was still considered an information service.

“If this reminds you of the scene in the Harry Potter books when the coward Peter Pettigrew, who had immense power as James Potter’s secret-keeper, makes a deal with Voldemort and betrays the wizarding world, it should,” Ammori writes.

Columbia law school professor Tim Wu, who coined the term net neutrality more than 10 years ago, makes clear that he, too, blames the former FCC Chair. Genachowski “was cowed,” Wu writes in The New Yorker. "Put less generously, he blew it."

Of course, even if Genachowski “blew it,” the current leadership still has the power to try to enact enforceable neutrality rules -- but only if Chairman Tom Wheeler is willing to fight to classify broadband as a telecommunications service. Whether he's inclined to do so remains an open question.

Late yesterday, Wheeler wrote a blog post that addresses the court decision, but reveals little about his future plans. While he says that he expects broadband networks to continue to abide by the neutrality principles, he stops short of explaining how he intends to ensure that they do so -- other than to suggest that the FCC will take some sort of action if an Internet service provider starts censoring the Web. “If something appears to go wrong in a material, not a trivial, way, the FCC will be available to use the totality of its authority for adjudication and enforcement,” he writes.

“My intention is to employ any necessary means among the wide variety of them given to the FCC by the Congress to sustain our jurisdiction,” he writes. “How jurisdiction is exercised is an important matter. My strong preference is to do it in a common law fashion, taking account of and learning from the particular facts that have given rise to concern.”