Appeals Court says FCC can't use regulatory approach it chose during Bush error

Reading the headlines on traditional media websites this morning, you might believe that a federal appeals court has just slammed the door on the Federal Communications Commission's ability to require net neutrality (the idea that Internet service providers should treat all content, sites, and platforms equally) with its ruling in Comcast v. FCC (PDF, thirty six page opinion).

In actuality, the Circuit Court did not decide that the FCC cannot require Net Neutrality. Rather, it found that the FCC misread its authority under the Communications Act of 1934, which Congress has amended over the years. To understand what the court decision really means, a little background is in order.

As many readers know, the FCC is a five member body. The ideological composition of seats is determined by whichever party has control of the White House. During the Bush error, Republicans controlled the FCC, and while they controlled the FCC (and were implementing multiple schemes to deregulate the telecommunications industry), they decided to "classify" access to the Internet under a part of the Communications Act which gives the FCC broad authority.

The Appeals Court has effectively just told the FCC, Sorry, you can't do that. The Court agreed with Comcast, but its ruling has absolutely nothing to do with the merits of net neutrality. The FCC is free to revisit its Bush error decisions, and choose a new regulatory approach for the Internet on its own. It can find jurisdiction allowing it to regulate Internet service providers like Comcast in other parts of the Communications Act.

As the FCC's Jen Howard put it: "Today’s court decision invalidated the prior Commission’s approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end."

Democratic Commissioner Mignon Clyburn added in a news release, "The Court’s decision... does not change the importance of our goal nor should it weaken our resolve. Indeed, we now have the kind of guidance that will enable us to develop the most effective and legally sound rules of the road to preserve Internet openness and to achieve other important goals set forth in the National Broadband Plan."

So Congress does not need to get involved... although it could, and it probably will, if the FCC doesn't respond to this decision in a timely fashion.

Among the organizations that will be pushing the FCC to act is Free Press. "The FCC must have the authority to carry out its consumer protection and public interest mission in the 21st century broadband marketplace," said Free Press' Research Director, S. Derek Turner. "The current Commission did not create this existential crisis, but it now has no choice but to face these tough jurisdictional questions head on, and do what is necessary to protect consumers and promote competition."