WASHINGTON, D.C. — Progressive Policy Institute senior fellows Hal J. Singer and Ev Ehrlich today released the following statements after a U.S. Court of Appeals struck down rules by the Federal Communications Commission (FCC) prohibiting Internet service providers from restricting user access to legal Web content:
Hal J. Singer is a senior fellow at PPI:
In its decision to vacate the anti-discrimination and anti-blocking rules of the Open Internet Order, the D.C. Circuit correctly recognized that the FCC used a heavy-handed, ‘common carrier’ approach to regulating Internet access providers in their dealings with websites—despite the Commission’s classification of Internet access providers in a manner that exempts them from treatment as common carriers.
“By effectively proscribing pay-for-priority deals and thereby compelling Internet service providers to provide enhanced services to websites at no cost, the FCC veered backwards into a 20th century, common-carrier approach to regulating a 21st century service.
“The Court appears to have left open alternative regulatory approaches that would permit ‘individualized bargaining’ between Internet access providers and websites while protecting against discrimination in favor of affiliated or preferred websites, including case-by-case adjudication of disputes if and when they arise.
“Hopefully the Commission can now focus its attention on designing such rules in a way that is more consistent with its proper, light-handed approach to all things Internet.”
Ev Ehrlich is a senior fellow at the Progressive Policy Institute and president of ESC Company, a Washington, DC based economics consulting firm:
Today’s Court decision is not a clear-cut victory for any one side in the Internet policy debate, but it is a victory for that debate.
“On one hand, Verizon, which sued the FCC, challenging their authority to regulate them, got what they wanted. The Court agreed that the 1996 Telecommunications Act protects them from being regulated as a common carrier, meaning that the FCC can’t tell them how to manage their networks. That’s a big win—the decision essentially means that if the FCC lacks the authority to mandate specific network practices such as ‘net neutrality.’
“But on the other hand, the Court agreed that the FCC, under its mandate to promote and extend the Internet (which is found in the same 1996 law), can do just about anything that the law doesn’t explicitly prohibit. So the broad authority the Court found in the FCC’s mandate may limit the FCC from taking a few specific actions (like imposing net neutrality), but doesn’t take away their seat at the table.
“What happens next? Presuming this decision stands, one possibility is that the FCC decides to wade into the crux of the matter and classify the broadband Internet as really just another ‘telecommunications service.’ That is, the 1996 law divided communications into a heavily-regulated ‘telecommunications’ component based on the legacy phone system, and an essentially unregulated ‘information services’ component, within which the Internet burgeoned. The FCC, urged on by neutrality advocates, could announce that the Internet was really ‘just another phone service’ and impose new regulations on it. But this risks being laughed out of court using the Frank Zappa test, as enunciated in his classic You Are What You Is—a cow don’t make ham.
“There are plenty of real issues surrounding the Internet—such as extending it to the unserved, protecting our privacy, and using it to improve our schools, health care system, local governments. If the Court gets us past a sterile, theoretical argument over ‘neutrality’ and on to this more pressing agenda, it will have turned out to be a very positive one, and a victory for the debate itself.“
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