The PJ Tatler

Court Strikes an Obama Regulatory Overreach Down, Sort Of

The FCC’s move to impose “net neutrality” has been struck down in court. The Hill:

A federal appeals court on Tuesday struck down the Obama administration’s net-neutrality rules.

The D.C. Circuit Court of Appeals ruled that the Federal Communications Commission overstepped its authority by prohibiting Internet providers from blocking or discriminating against traffic to lawful websites.

By classifying Internet access as an “information service” as opposed to a “telecommunications service,” which is the classification used for traditional telephone companies, the FCC is not able to impose “anti-discrimination” and “anti-blocking” rules on Internet providers, the court said.

“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such,” the judges wrote.

The decision is blow to President Obama, who made net neutrality a campaign pledge in 2008, and erases one of the central accomplishments of former FCC Chairman Julius Genachowski, who pushed the “Open Internet” order.

“A blow to President Obama,” but not the kind he used to hustle on the streets of Chicago.

The fight pitted one group of giant corporations against another, with the FCC stepping in the middle to impose new regulations that have not been authorized by Congress. In fact, the FCC as a broadcast regulator has not authority over the Internet, as the court found.

No, wait. The court didn’t find that. The court said the FCC does have jurisdiction over the Internet, which may be the most significant part of its ruling. So the FCC may yet find a way to impose itself on the Internet like regulating railroads.

Though the judges disagreed with the agency’s approach to the old rules, the court said the commission has the authority “to promulgate rules governing broadband providers’ treatment of Internet traffic.”

FCC Chairman Tom Wheeler noted that aspect of the court’s decision and vowed to “consider all available options, including those for appeal.”

The FCC may end up reclassifying broadband Internet access as a “telecommunications service,” bringing it fully under FCC regulation. The endgame of that will be, even if you liked having a free and unfettered Internet, you won’t get to keep it.