US court strikes down net neutrality: What's next?

The FCC has several options, but many of them aren't likely to prevail

The U.S. Federal Communications Commission and its allies have several options, with most of them difficult, after a U.S. appeals court struck down most of the agency's 2010 net neutrality rules.

The U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday that the FCC did not have the authority to prohibit broadband and mobile service providers from selectively blocking or slowing Web traffic and applications.

With FCC Chairman Tom Wheeler already promising to "consider all available options," it's clear that the net neutrality fight in Washington, D.C., is far from over. Wheeler and Michael Weinberg, acting co-president of digital rights group Public Knowledge, both talked about possibly appealing Tuesday's decision.

However, the chances on appeal are mixed at best. While the court, in Tuesday's ruling, said the FCC has some authority to regulate broadband, this is the second time the appeals court has struck down a specific FCC attempt to enforce net neutrality rules, with the same court ruling in April 2010 that the agency didn't have the authority to order Comcast to stop throttling peer-to-peer traffic in the name of network management.

Beyond an appeal, the FCC has a couple of other options. With the agency taking its regulatory authority from the Telecommunications Act of 1996, it could go back to Congress and ask for new authority to regulate broadband. But the Republican majority in the House of Representatives has tried multiple times to repeal the FCC's net neutrality rules, and any legislation giving the FCC new authority over broadband providers would have little chance with lawmakers there.

It would take major pressure from the public to force Congress to pass net neutrality legislation, said Lynne Bradley, director of government relations for the American Library Association, which supports strong net neutrality rules. "Hope springs eternal," she said.

The most likely course of action for the FCC is to write new rules that would pass court scrutiny. In Tuesday's court ruling, Judge David Tatel noted that the '96 Telecom Act gives the FCC the "affirmative authority to enact measures encouraging the deployment of broadband infrastructure."

The FCC has "reasonably" interpreted that part of the Telecom Act to "empower it to promulgate rules governing broadband providers' treatment of Internet traffic," Tatel added. But in a somewhat confusing opinion, Tatel appears to suggest that the FCC is limited from regulating broadband mainly because the agency itself has classified broadband as a lightly regulated information service, which is exempted from most regulations in the '96 Telecom Act.

Tatel noted that the FCC's own decision to classify broadband as an information service, and not as a basic telecom service, prevents the agency from applying so-called common carrier rules to broadband.

Tatel's decision threw the rules back to the FCC, leaving open additional action from the agency.

One simple way, at least on its face, to get around the prohibition on applying common carrier rules to broadband would be for the FCC to reclassify broadband, subject to the common carrier rules that traditional voice service is subject to. Several groups supporting net neutrality rules have long called on the FCC to reclassify broadband and move the service to the FCC's so-called Title II common carrier authority.

If the FCC doesn't appeal, it "could broadly do one of two things: change the authority to fit the rules or change the rules to fit the authority," said Public Knowledge's Weinberg. "The opinion makes it clear ... that the FCC would be well within its rights to reclassify if it saw fit."

But the FCC could also look to craft new rules "to fit the authority," Weinberg added. "The court made it clear that the FCC has authority over broadband access generally. That would mean that the FCC would make new rules that address the things it cares about in Internet access in a way that does not get too close to Title II common carrier-style regulation."

Reclassification, however, would bring the wrath of both congressional Republicans and the carriers down upon the FCC. "It would be regulatory World War III," said Scott Cleland, operator of, an online forum representing broadband carrier interests.

Observers on both sides of the net neutrality debate suggested the FCC's best course of action, while not easy, may be to write new rules that establish basic protections for broadband customers.'s Cleland called on the FCC to work with broadband providers to establish compromise rules that everyone could live with.

If the FCC "works on new broadband information service traffic-rules-of-the-road that comport with this decision, this effectively could settle into a de facto net neutrality peace given that the FCC's 'general authority to regulate' broadband would be unchallenged and the broadband industry's biggest fear, common carrier regulation of broadband, would be off the table," he said.

Tatel's decision gives the FCC broad leeway to create new rules, agreed Pantelis Michalopoulos, a Steptoe and Johnson lawyer who argued for the net neutrality rules at the appeals court on behalf of several digital rights groups. The agency "has wide room short of reclassification," he said.

It's important that the appeals court ruled that the FCC has jurisdiction over broadband and was reasonable in trying to create rules for broadband providers' treatment of traffic, he said. The agency could, for example, establish a basic level of guaranteed service for broadband customers, or define a reasonable level of service, he said.

"There is room for the FCC to make rules that comply with the direction of the court," he added.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is

Join the newsletter!

Error: Please check your email address.
Rocket to Success - Your 10 Tips for Smarter ERP System Selection

Tags governmentmobileregulationinternetlegaltelecommunicationU.S. Federal Communications CommissionCivil lawsuitsPublic KnowledgeU.S. Court of Appeals for the District of Columbia CircuitScott ClelandAmerican Library AssociationMichael WeinbergTom WheelerDavid TatelLynne BradleyNetCompetition.orgPantelis MichalopoulosSteptoe and Johnson

Keep up with the latest tech news, reviews and previews by subscribing to the Good Gear Guide newsletter.

Grant Gross

IDG News Service
Show Comments


James Cook University - Master of Data Science Online Course

Learn more >


Victorinox Werks Professional Executive 17 Laptop Case

Learn more >



Back To Business Guide

Click for more ›

Brand Post

Most Popular Reviews

Latest Articles


PCW Evaluation Team

Louise Coady

Brother MFC-L9570CDW Multifunction Printer

The printer was convenient, produced clear and vibrant images and was very easy to use

Edwina Hargreaves

WD My Cloud Home

I would recommend this device for families and small businesses who want one safe place to store all their important digital content and a way to easily share it with friends, family, business partners, or customers.

Walid Mikhael

Brother QL-820NWB Professional Label Printer

It’s easy to set up, it’s compact and quiet when printing and to top if off, the print quality is excellent. This is hands down the best printer I’ve used for printing labels.

Ben Ramsden

Sharp PN-40TC1 Huddle Board

Brainstorming, innovation, problem solving, and negotiation have all become much more productive and valuable if people can easily collaborate in real time with minimal friction.

Sarah Ieroianni

Brother QL-820NWB Professional Label Printer

The print quality also does not disappoint, it’s clear, bold, doesn’t smudge and the text is perfectly sized.

Ratchada Dunn

Sharp PN-40TC1 Huddle Board

The Huddle Board’s built in program; Sharp Touch Viewing software allows us to easily manipulate and edit our documents (jpegs and PDFs) all at the same time on the dashboard.

Featured Content

Product Launch Showcase

Latest Jobs

Don’t have an account? Sign up here

Don't have an account? Sign up now

Forgot password?