Originally published: January 15, 2014
Last updated: January 16, 2014 - 9:04pm
[Commentary] The US Court of Appeals for DC Circuit’s Open Internet ruling includes a bizarre set of contradictions.
On the one hand, the majority of the court finds that the Federal Communications Commission properly found that the current openness of the Internet is critically important to protecting subscribers and fostering innovation. On the other hand, the court found that because the FCC insists on classifying all broadband service as a Title I “Information Service” rather than as a Title II “Telecommunications Service,” the FCC is powerless to act on these findings.
The FCC now has confirmed affirmative authority to enact measures encouraging the deployment of broadband infrastructure and to promulgate rules governing broadband providers’ treatment of Internet traffic, provided the FCC allows broadband providers to offer preferential treatment to some and block others. So what’s the state of the world at the end of the day? The FCC’s rules requiring broadband providers to disclose their network management practices remain intact and in force. Providers are free to strike whatever deals they want or block whoever they want -- a situation the court found does indeed endanger the “virtuous cycle of innovation” that has powered the Internet until now. Unless the FCC reclassifies broadband access as Title II telecommunications services, however, the FCC cannot really do anything about it directly.
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