Net neutrality suffers major blow

A federal appeals court has torn up some of the key rules enforcing net neutrality in the United States. The decision is more about the powers of the Federal Communications Commission to make those rules than it is the principle itself.

While the concept of net neutrality isn’t covered by any act of Congress or constitutional measure, it is covered by FCC rules. In 2005 the commission laid down four principles, stating that Internet users have the right to access any lawful content, use any applications or services, use any devices, and use any service provider.

For the most part, these have been guidelines for using on a case-by-case basis, rather than firm regulations. For example, the FCC has regularly argued that not only do consumers have these four rights, but that they mean broadband carriers can’t discriminate by offering better data transfer speeds to some online services or slowing down others.

In 2010 it turned these principles into two specific rules: that broadband carriers can’t block or slow down access for any reason other than “reasonable network management” and that they must publish details of how they manage traffic.

Verizon challenged this in court and has now won a partial victory: the rule about blocking or slowing access has been struck down, but the rule about publishing policies remains in force.

The issue wasn’t the rule itself, but rather the FCC’s rulemaking powers. The court determined the FCC only has such authority over “common carriers” such as phone companies, which are legally required to pass through all information without preference. It also said that broadband providers are specifically excluded from this classification.

The FCC says it will consider appealing the verdict. Given that its a wide legal issue about regulatory powers, the case seems to meet the criteria for the Supreme Court.

Other options potentially open to the FCC include: trying to rewrite its rules in a legally acceptable manner; simply reclassifying the regulatory status of broadband providers (though whether it can do so is itself the subject of legal debate); or trying to persuade Congress to pass a specific law enforcing net neutrality.

It should be noted that although it can’t currently enforce industry-wide rules on net neutrality, the FCC can and has forced individual companies to follow them in specific circumstances. For example, Comcast agreed to follow the FCC principles until 2018 as a condition of getting approval to take over NBC Universal.

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