The DC Circuit of Appeal’s ruling on Tuesday (see main story in CableFAX Daily), which struck down key parts of the FCC’s Open Internet Order, triggered a huge wave of reactions. Backers were disappointed, while opponents claimed victory. The ruling, however, affirmed the FCC’s “general authority” over Internet access.
Free Press blamed former FCC head Julius Genachowski, saying he “made a grave mistake” when the agency failed to ground its rules on solid legal footing. “Internet users will pay dearly for the previous chairman’s lack of political will. That’s why we need to fix the problems the agency could have avoided in the first place,” president and CEO Craig Aaron said in a statement. Former FCC Democratic commish Michael Copps, currently special advisor to nonprofit Common Cause’s Media and Democracy Initiative, said the court’s decision is "poised to end the free, open, and uncensored Internet that we have come to rely on.” The Court’s decision grows out of the FCC’s classification of ISPs as “information service” providers. While federal law gives the commission limited authority to regulate such services, the FCC could continue to protect the Open Internet if it re-classified broadband as a "telecommunications service," Copps said.
The court has “taken away important FCC flexibility, and its opinion could complicate FCC efforts to transition the phone network to IP technology, promote broadband buildout, and other matters,” Harold Feld, svp of Public Knowledge said. "However, the Court did uphold broad Commission authority to regulate broadband. To exercise that authority, the FCC must craft open Internet protection that are not full-fledged common carrier rules. Alternatively, if the FCC needs broader authority it can classify broadband as a title 2 common carrier service,” he said. Public Knowledge might appeal the decision. Meanwhile, it is looking to work with the FCC under the existing authority the court recognized, Feld said.
Rep Doris Matsui (D-CA) is pleased the court affirmed the FCC’s authority to oversee broadband services. “It is critical that all Americans have access to a free and open Internet, and I urge the Commission to act accordingly. As more and more Americans rely on the Internet for information and communications, it is imperative that they have access to all available content,” she said.
Verizon, which challenged the FCC’s order, said the ruling would allow “more room for innovation, and consumers will have more choices to determine for themselves how they access and experience the Internet.” Having said that, Verizon’s plan to provide “unblocked access to lawful websites and content when, where and how they [consumers] want” won’t change in light of the court decision.
Republican legislators supported the decision. “I have long opposed efforts that would allow the government to regulate the Internet, and today’s decision is a win for consumers and broadband innovation,” Sen John McCain (R-AZ) said. “This decision also sends a strong message to federal agencies that may attempt to direct by regulation that which is not authorized by Congress,” he said.
It’s the second time that the DC Circuit ruled in the ISPs’ favor. In 2010, it upheld Comcast’s opinion that the FCC lacks the authority to enforce net neutrality rules.