D.C. Circuit Strikes Down FCC’s Net Neutrality Rules


The D.C. Circuit Court of Appeals just struck down important segments of the FCC’s Open Internet rules, determining that the agency lacks the power to require internet service providers to treat all traffic equally.  Translation?  “Net Neutrality” is dead, at least for the moment.

The Court ruled on Verizon v. FCC, a challenge to the net neutrality rules put in place in 2010.  A copy of the decision is available here.  The Court vacated the FCC’s anti-discrimination and anti-blocking policies, though it preserved disclosure requirements that Verizon opposed — in other words, carriers can make some traffic run faster, but they have to tell subscribers.

The Court does not, on its face, appear to be opposed to the FCC’s goals of preserving and enhancing a free and open Internet.  Instead, the Court concluded that because the FCC has previously elected to void “common carrier” treatment of ISPs, through such decisions as the Cable Modem Order and Wireline and Wireless Broadband Orders, it can’t now use Section 706 of the Act as a backdoor method to impose “de facto” common carrier regulations on ISPs.  The Court, in essence, told the FCC it can’t have its cake and eat it too.

We will be actively monitoring developments in this area as the FCC must now evaluate its options, which could include an effort to reinstate Title II common carrier regulations on providers of broadband services.

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