by Mike Masnick
Almost everyone I’ve spoken to (on both sides of the net neutrality debate) more or less expected the ruling that came down this morning in the DC circuit, in which the appeals court struck down the FCC’s net neutrality rules because the the FCC had no mandate under the rules it used to issue that ruling. Basically, this is exactly what lots of us said at the start of this whole process. I’ve seen a bunch of reports overreacting to this today, from people saying that it’s “the death of the internet.” It’s not. There are problems on both sides here. The telcos absolutely do want to abuse things to effectively double charge both sides. And that could clearly create significant issues with the basic end-to-end nature of the internet.
However, on the flip side, we should be equally concerned about the FCC overstepping its bounds and mandate in regulating the internet.
Because that opens up the opportunity for the FCC to regulate all sorts of aspects of the internet in dangerous ways. So, this ruling is both good and bad. It stops the FCC from overstepping its bounds… but opens up the opportunity for the telcos to sweep in and try to upset the basic concepts of the internet. It’s what happens now that becomes interesting. The court does leave open the possibility that the FCC could use other aspects of its mandate to establish net neutrality rules — where it has a much more firm legal footing. In other words, the court is telling the FCC basically: you can establish net neutrality rules if you do it correctly.
Separate from that, it’s possible that Congress could step in as well — though the issue of net neutrality in Congress has become partisan, and thus toxic. Of course, in the meantime, it seems likely that the FCC will appeal to the Supreme Court, and there’s a decent chance that the Supreme Court will take the case — though I’d be very, very surprised if the Supreme Court came to a different ruling. The original FCC rule, while well intentioned, definitely stretched the FCC’s mandate, and it’s no surprise that it’s now been slapped down.