Federal Court Strikes FCC’s Open Internet Rule On Technicality

BY Heather Greenfield
January 14, 2014

Washington – A federal appeals court has struck down the FCC’s Open Internet rule on a technicality because the FCC did not employ the right statutory authority when it adopted its open Internet order to prevent discrimination by Internet Access Providers.

The court said the FCC lacked authority because Internet access is still classified as an unregulated information service. The ruling now gives the FCC the opportunity to correctly classify Internet access. Such a move would not necessarily include rate regulation of any kind.

The following can be attributed to CCIA President & CEO Ed Black:

“We’re optimistic that this ruling will now result in a better approach by the FCC to keep the Internet open and prevent Internet Access Providers from favoring some content over others. This nondiscrimination principle has been key to the launching of new Internet platforms, websites and applications and to the growth of the tech industry and innovation in the US since the 1990s.”

The following can be attributed to CCIA Vice President Cathy Sloan:

“The court decision squarely identifies a former FCC’s classification of Internet access as an unregulated information service as the reason the 2010 FCC’s Open Internet order fails. If and when the FCC properly classifies ‘last mile’ Internet access connections as telecommunications ‘by wire or radio,’ it will have the option of prohibiting anticompetitive discrimination and protecting access to an open Internet, on a firm legal foundation.

“The Telecom Act is technology neutral and Title II provides clear statutory authority over telecommunications services that support Internet access, but the agency did not use it. Now the FCC has the chance to reclaim its fundamental authority over broadband Internet access as the critical network infrastructure of the 21st Century. The federal appeals court decision is an open invitation to the FCC.

“Nondiscrimination rules are not only permissible under the Telecom Act for Internet access connections, but were in force and effect at the birth of the Internet and boosted its widespread commercial development in the 1990s and into the 21st Century based on Chairman Powell’s 2005 principles. But as the court decision reminds us, policy principles alone will not allow the FCC to promise consumers and small businesses anything in the way of affordable, reliable open Internet access.”

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