Court rules FCC out of bounds on network neutrality

by Steve Blum • , , ,

Leaving the neutral zone.

The FCC can’t tell Internet service providers how to manage their traffic and pricing schemes. That was the ruling this morning from a federal appeals court that said the commission can’t prevent service providers from blocking subscribers from a particular website or type of service – video streaming, for example – or charging more to access it.

In doing so, the court agreed with the two republican-appointed commissioners, Ajit Pai and Michael Rielly, who said last week that the FCC’s network neutrality rules went beyond what congress had allowed. The court’s decision also makes FCC chair Tom Wheeler’s plan for ad hoc refereeing of Internet related consumer issues a much more unlikely proposition. He’s considering an appeal, according to a statement posted on the FCC’s website

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.

Those options also, presumably, include backtracking on an earlier FCC decision not to regulate Internet providers as “common carriers”, similar to telephone companies or railroads.

Pai, on the hand, wants the commission to “take no for an answer”

Unless Congress acts, we should stay our hand and refrain from any further attempt to micromanage how broadband providers run their networks. We should focus on removing regulatory barriers to broadband deployment, not imposing unnecessary rules that chill infrastructure investment.

It’s hard to imagine congress agreeing on new rules to regulate the Internet anytime soon, though. So reviving network neutrality rules requires either an appeal to the supreme court or a move by the FCC to regulate the Internet via hundred-plus year old common carrier rules.