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January 15, 2014 11:57 AM Next Steps on Net Neutrality

By Ed Kilgore

Yesterday’s decision by a three-judge panel of the D.C. Court of Appeals invalidating the FCC’s “net neutrality” rules for broadband providers leaves the FCC several avenues for policing discriminatory activity: using a case-by-case review (left open by the Court) of provider behavior; reconsidering its earlier decision not to treat internet service providers as “common carriers,” and simply waiting to see what happens next, both in the marketplace and in Congress. Marguerite of CNET noted there’s no real consensus among net neutrality advocates about how to proceed:

FCC Chairman Tom Wheeler said in his statement Tuesday that the agency is considering all its options, including an appeal. This could mean an appeal to the US Supreme Court. Consumer advocates, which were very pleased the court sided with the FCC regarding its authority to regulate broadband services, say the FCC should come up with new regulations that don’t use common carriage as their legal basis.
There’s always the possibility that Congress could pass legislation that spells out rules. But because Net neutrality is such a polarizing political issue and because of the dysfunction in Congress at the moment, it’s more likely that the FCC will be forced to act.
Sen. Al Franken (D-Minn.), one of the most vocal lawmakers supporting open Internet rules, said Tuesday that Net neutrality is the free speech issue of our time. He added that it’s a common-sense idea that big corporations like Verizon, Comcast, and Time Warner shouldn’t control who gets to innovate, communicate, or start a business on the Internet. And he is urging the FCC to find a way to make rules that will not be challenged in court.

Since I’m one of them, I’d add that people who get their internet services from Comcast get a bit of a break from anxiety over the decision:

The court’s decision applies to all Internet and broadband service providers, except for one: Comcast. As part of conditions it agreed to when it purchased NBCUniversal, Comcast said it would abide by the FCC’s Open Internet rules for seven years, even if the rules were modified by the courts.

The clock’s running on that agreement, of course.

It’s tempting to make this case an example of why Republican dominance of the D.C. Court of Appeals is a real problem, as it has been in other important cases involving commercial and “free speech” issues. But the decision was actually made by one Republican-appointed and one-Democratic appointed judge (another Republican dissented from the holding that the FCC had the power to regulate the internet at all), and really just blocked one route for enforcing net neutrality, which hurt because it was the one the FCC had chosen.

In any event, the ball is back in the FCC’s court, and it will be interesting to see whether it adjusts its rulemaking to the decision’s requirements; goes hat in hand again to Congress for clarity and authority; or simply tries to muddle through one case, and one complaint, at a time.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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