POSTED BY Edwin Batista

Feeling the Pressure from politicians, the Federal Communications Commission (“FCC”) announced that plans to reinstate Net Neutrality will be released shortly. Despite suffering a legal defeat in a federal appeals court, the FCC was encouraged by the court’s decision, which threw out the FCC’s open Internet rules on a legal technicality.  Regardless of the optimism, the FCC will have a tough fight ahead of itself.

In Verizon v. F.C.C., 11-1355, 2014 WL 113946 (D.C. Cir. Jan. 14, 2014), the Court of Appeals rejected the FCC’s Open Internet rules on a legal technicality but upheld the FCC’s authority to regulate broadband networks. The Court found  that the FCC has a general authority to regulate broadband rules but the Court found that the FCC’s Open Internet rules were based on flawed legal logic.  Specifically, the FCC cannot regulate broadband providers using the same rules that apply to phone companies. In the spirit of acting to preserve a free and open Internet the FCC will soon outline how it proposes to preserve net neutrality.

One possible direction that the FCC could takes is to change the classification of Broadband.  Using this strategy will likely be opposed by broadband providers.  Broadband providers argue that changing the classification of Broadband would change the way that all matters involving the Internet are regulated. Another strategy that the FCC can take is if Congress makes changes to the Communication Act to specifically delineate all of the intricacies of Net neutrality. However, critics argues that such reform would take years.

This is an important first step on the part of the FCC.  By acting so quickly after the decision the FCC is reassuring the public that the FCC believes that Net Neutrality is essential for consumers.  Without Net Neutrality, Broadband providers have an incentive to control access to the internet by blocking and slowing down certain content.  By trying to monetize consumer’s access to different parts of the internet, Broadband companies limit commerce, innovation, and consumer’s ability to communicate with others and obtain information.  Thus the FCC should make reinstating Net neutrality their top priority.

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