Mixed-Bag Net Neutrality Ruling from DC Circuit

by Mike Wendy on January 14, 2014

The following quote may be attributed to Mike Wendy, President of MediaFreedom.org:

Alexandria, VA, January 14, 2014 – Today, the DC Circuit threw out core aspects of the FCC’s Net Neutrality regulation, vacating both the anti-discrimination and the anti-blocking portions of the rule, and in doing so determining that the Commission illegally imposed FDR-era phone regulations on broadband providers against the will of Congress.

MediaFreedom is heartened by this part of the ruling, which, importantly, confines the FCC to its duty of implementing law and policy, not creating it on its own as it sought to do with Net Neutrality.

But the Court’s determination is a mixed-bag, too.  And this may have deleterious effects on network investment and innovation going forward. More specifically, the Court both granted deference to the Agency as it sought to more broadly interpret its role in promoting the widespread deployment of broadband; and it more-or-less invited the Commission to reclassify broadband / information services as telecommunications services, thus allowing the FCC, albeit with some delay, to fully regulate broadband providers as old-time telephone monopolies.

FDR-era regulations did not grow the Internet.  In fact, it was the very lack of that regulatory paradigm, fueled by the advance of technology, which led to the medium’s tremendous success.  MediaFreedom remains hopeful that the three Majority Commissioners agree.  Depression-era phone regulations for broadband providers would greatly depress network investment and innovation, “breaking” the Internet as we know it.  The Commission should carefully consider if such “consumer protection” is worth it as it decides on its next steps.

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