April 9, 2010

The internets have been the scene of much wailing and gnashing of teeth over the recent court ruling smacking down the FCC's efforts to enforce net neutrality through the back door. The immediate reaction from the netroots was horror: Now the providers could have their way, and make us use Bing instead of Google; Hotmail instead of GMail or worse...Yahoo. (I'm kidding, truly.)

After reading the ruling and some pretty wonky policy blogs, the story is more interesting than that. The court didn't deny FCC the right to penalize Comcast. It only denied the FCC the right to penalize Comcast under the current self-imposed (and weak) regulatory classification for broadband providers.

This LA Times article is a pretty clear explanation of where the FCC should go next:

One option is for the FCC to reverse its previous decisions and classify broadband as a communications service. It wouldn't be far-fetched -- the Internet is a more sophisticated and powerful communications medium than traditional telephony. In fact, phone service is just one of many communications applications the Internet supports. Considering how much has changed since Congress overhauled telecommunications law in 1996, however, it would be better to have lawmakers give the FCC specific powers to safeguard the Net than to have the commission stuff broadband providers into the same regulatory category as last century's Bell system.

And this is, more or less, what the court challenged the FCC to do. It ruled that under the current classification, the FCC lacked authority to fine Comcast or require it to remain neutral. In fact, it more or less ruled that as things stand, the FCC lacks authority to do much of anything. However, the court also clearly stated (more than once) that if broadband is classified as a communications service, FCC regulatory authority expands significantly.

All is not lost and net neutrality isn't dead. There are many reasons for the FCC to move ahead and properly classify broadband services as a communication service. In fact, I'm surprised they ever chose to limit their authority the way they did, though it is what I've come to expect from regulators under Republican administrations.

Shorter appeals court to FCC: Use the authority granted to you under the proper statute, or lose it. In the long run, the loser may be Comcast.

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