If at first you don’t succeed, try and try again? That seems to be the Federal Communications Commission’s approach when it comes to net neutrality. Courts have nixed the agency’s previous net neutrality rules twice already, but it’s going to try again, according to The New York Times.
The proposals, to be introduced by Tom Wheeler, the chairman of the commission, will also include measures that will seek to prohibit Internet service providers from discriminating against any providers of Internet content. A federal appeals court ruled last month that the F.C.C.'s previously carried out Internet rules that illegally treated Internet service providers as regulated utilities, or common carriers, such as telephone service.
The court said that the F.C.C. did have authority to oversee broadband service in ways that encouraged competition and the expansion of broadband. Because that part of the ruling essentially expanded the F.C.C.'s authority, the commission will not appeal the ruling, handed down by the United States Court of Appeals for the District of Columbia.
That last bit is important. Even though the most court recent ruling struck down the FCC’s specific net neutrality requirements, it also gave the agency a lot more power over the Internet, saying that under Section 706 of the Telecommunications Act, the agency does have the power to promote and regulate broadband competition and deployment. We’ll have to wait and see how the agency ends up using its new powers, but they are potentially far-reaching. In a dissenting opinion, Judge Laurence Silberman wrote that the majority ruling “grant[s] the FCC virtually unlimited power to regulate the Internet” by giving it the authority to put in place “any regulation that, in the FCC’s judgment might arguably make the Internet ‘better.’” The Internet becomes subject to the agency’s easily politicized whims.
FCC Chairman Tom Wheeler has said he wants to be careful about how the agency uses the power conferred by the ruling. He isn’t, for example, taking the more radical step of reclassifying Internet services so that are subject to even stricter regulatory oversight. But he is going forward with yet another plan to implement net neutrality rules. And thanks to the court-granted expansion of the agency’s authority, it’s a plan that might actually work.