Why won’t FCC appeal court ruling striking down net-neutrality?

A news update. We wrote earlier about the DC court ruling against the FCC, the Internet, and net neutrality in a case brought by Verizon.

From the earlier piece:

Court Strikes Down FCC Open Internet Order

WASHINGTON — On Tuesday, the D.C. Circuit Court of Appeals struck down the Federal Communications Commission’s Open Internet Order. In its decision, the court said that the FCC lacked the authority to implement and enforce its rules under the legal framework the agency put forth.

The FCC’s 2010 order was intended to prevent broadband Internet access providers from blocking or interfering with traffic on the Web. Instead of reversing a Bush-era FCC decision that weakened the FCC’s authority over broadband, and establishing solid legal footing for its rules, former FCC Chairman Julius Genachowski pushed for rules under the complicated legal framework the court rejected today.

Now the news. The FCC has apparently decided to stand down and not put up a fight.

Berkeley law professor James P. Tuthill:

FCC throws in the towel, but public has right to know why

The Federal Communications Commission said last week that it would not appeal a court decision issued in January overturning the FCC’s net neutrality rules, Verizon vs. Federal Communications Commission.

Those rules prohibited discrimination and blocking by Internet service providers that provide high speed connections to the Internet.

Tom Wheeler, chairman of the FCC and an Obama appointee, said that the FCC supports an open Internet and will develop new rules to replace those thrown out by the court. But for practical purposes, he threw in the towel. And the just-announced deal between Comcast and Netflix for preferential delivery shows how quickly the industry will move to capitalize on its now-unrestrained power.

Verizon is a horrible legal precedent for the FCC and the Internet user and entrepreneurial communities because it severely restricts, if not eliminates, the FCC’s power to prohibit discrimination and anticompetitive acts by service providers. It seems obvious that the FCC would want the case overturned.

The article goes on to say that the FCC could have sought Supreme Court review. And there’s the usual revolving door, capture-by-industry problems:

The failure of the chairman to seek review raises legitimate questions about the reasons for declining to appeal. Previously, he was the president of the National Cable Television Association and president of the Cellular Telecommunications and Internet Association. Cable television and wireless providers strongly opposed the net neutrality rules, and they must be secretly congratulating themselves over Wheeler’s decision not to appeal.

Do read the piece. There’s more that I didn’t quote; it will help you flesh out your understanding.

I’m not sure what this will eventually mean. I hear that this could be just a tactical move by the FCC, but no one’s sure. In reality, they really need to reclassify the Internet, mis-classification being the ultimate cause of the current problem (see the second half of this piece for more). I’m don’t know, though, if they’re headed in that direction. We’ll have to see how this evolves (or doesn’t).

GP

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Gaius Publius is a professional writer living on the West Coast of the United States. Click here for more. Follow him on Twitter @Gaius_Publius and Facebook.

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  • tamarz

    .

  • tamarz

    The judge who wrote the opinion, David Tatel, is a very liberal judge with a great record so the decision we got is the best we can expect.
    It seems to me as a non-lawyer, that Judge Tatel was upholding the FCC’s right to regulate communications but saying that they’re a victim of their own foolish decision to label broad band as an information service. And my understanding is that this definition was created under Bush for exactly this purpose — as a loophole to net neutrality.

    The FCC can change the definition and that, according to Tatel’s opinion, would bring the internet squarely under the regulation of the FCC. I think his opinion was almost a suggestion that they shold do exactly that.

  • cole3244

    why, because the elites no matter their political affiliation are one in a war with the rest of america, freedom and rights are only lip service to cover up the real agenda of the 1%.

  • Indigo

    Net neutrality is inconsistent with a well regulated media and only a well regulated media can deliver the kind of propaganda needed to maintain the myth of American Exceptionalism.

  • pappyvet

    Why ? Follow the money.

  • perljammer

    “Cox already has tiers of service.”

    Are you talking about Cox’s Essential/Preferred/Premier/Ultimate tiers? These are maximum download speed tiers and as far as I can tell, are not related to content. If you’re talking about something else, please be specific and provide links when citing sources if possible. I’m asking because I am very interested in issues relating to net neutrality.

    I certainly won’t argue with your other points, even though they have nothing to do with the topic of discussion.

  • Rrhain

    Indeed, but that raises the question of why they haven’t done so since it is so clearly obvious that that is what they need to do.

    That simply takes us back to the original problem: Lobbyist-as-regulator.

  • Rrhain

    Cox already has tiers of service.

    There’s a recent On the Media from NPR that talks about this. The internet providers want it all ways: Monopoly power claiming that unless they are allowed to charge everybody for everything however they want, they won’t be able to upgrade the network…but then refusing to provide service to areas claiming that it won’t be profitable to do so…but then going to court to block the municipality from creating their own internet service claiming that the government shouldn’t be involved in providing internet services…and then never upgrading their networks.

    The US has one of the worst internet infrastructures in the world and it is directly because the providers refuse to do anything except try to make a profit.

  • perljammer

    I have to say that I have never come across a “tiers of service” proposal like the one you describe, other than random people expressing concern that it might happen. The only thing I’m familiar with that comes close are voice plans that charge extra for exceeding time limits, or data plans that charge additional fees for “excessive” bandwidth consumption.

    Some ISPs have used strategies like throttling data rates for certain types of traffic, such as bittorrent, but I’ve never heard of an ISP charging different rates for different types of content. Of course, that may only mean that I haven’t searched carefully enough. If you can cite a source, I’d love to take a look at it.

  • http://parkandbark.wordpress.com/ Houndentenor

    My understanding is that some ISPs are considering having tiers of service in which you would have to pay a lot more to be able to use streaming services. Your point is well taken. Yes, they might also route you to their own service or services that have paid them a great deal of money for the diversion. The corporations have never much cared for the internet free-for-all. Among other things, anyone with an internet connection can put up content (blogs, videos, etc.) completely undermining their PR lies and deceit. It has become difficult to say one thing in your ads and do something else to your customers (although Capital One seems to get away with it still). They would love to be able to shut down their critics or at least limit access to criticism. The internet may be the most free the press has ever been since anyone with access (admittedly, not everyone) can publish anything. It doesn’t exactly put each citizen on the same footing as a media conglomerate but it certainly makes the playing field less tilted than it once was.

  • perljammer

    The problem isn’t ISPs charging customers for “special” services. The problem is backbone providers charging content providers for access, or throttling access in order to make a competing product appear more attractive. The Netflix/Comcast deal is a harbinger of much more to come

  • Russ

    That was attempted here in Portland when AT&T had the local cable tv monopoly. It was finally decided by the 9th circuit court that AT&T COULD have a monopoly, which paved the way for Comcast, et al. and the degrading service quality ever since.

  • http://parkandbark.wordpress.com/ Houndentenor

    Because the FCC is as corrupt as it has been for decades. It serves the interests of the industry, not the public. It’s no better under Democrats than under Republicans. People won’t notice until their internet provider starts charging them extra for youtube and netflix streaming videos. And the media aren’t going to cover it because they are all owned by the very companies that rip you off.

  • RepubAnon

    That’s what should have happened back in the day – and I believe some communities tried it. However, imagine what the courts would require municipalities to pay in the way of “fair market value”…

  • lynchie

    Like all departments in the government it serves the 1% and while they occasionally give us the illusion of regulation and control of monopolies in the end they do what they are paid to do give in to big business and the 1%. Look at the lack of regulation on oil companies especially after major spills, lack of oversight for fracking, opening up our parks for drilling and mining, lack of regulation on mining companies (coal ash, nasty chemical spills). There is simply nothing we can do to get our government and congress to represent us.

  • RepubAnon

    That’s my understanding as well. Besides, given the make-up of the DC Court of Appeals, they’d run the risk of an even less-favorable appeals court ruling.

  • iamlegion

    My understanding of the original ruling was that it was pretty straightforward – the FCC doesn’t classify ISPs the same way they do cable or phone service providers, so they can’t hold them to the same sort of ‘common carrier’ standards. It doesn’t seem like anything they could really expect to get overturned… but the lower court did pretty explicitly say that the FCC _could_ enforce net neutrality – they just have to officially classify ISPs as the sort of entities that are governed by that standard.

  • Kurt

    I wonder if the potential exists for cities/counties/states to declare eminent domain over their local telecommunications infrastructure, on the grounds that the current managers of the system aren’t serving the interests of the community. The municipalities could then assign customer-level duties to small, licensed internet service providers. Because of its pervasiveness in daily life, the Internet should be treated as a utility — ideally a public utility.

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