Court Drives FCC to Nuclear Option to Regulate Broadband

A federal appeals court all but told the FCC Tuesday that it has no power to regulate the internet, putting large chunks of the much-lauded national broadband plan at risk. And the FCC has only itself to blame.

Telecoms and many internet activists have long argued that the internet is a developing technology that was innovating so quickly that strict regulations would hamper it. In 2005, that argument drove the FCC under the Bush Administration to win a fight in the Supreme Court for the right to deregulate broadband providers, classifying them as an “information service,” largely outside the FCC’s power, rather than a “telecommunications service” that could be regulated like the phone system.

Following that win, the FCC simply issued a set of four principles of net freedom that it said it expected broadband companies to follow. They promised that broadband users could plug in whatever devices they wanted to their connection and then use whatever software or online application that they liked — without interference from their provider. Those principles never went through a rule-making period, and when the FCC went after Comcast for blocking peer-to-peer file sharing services, the company sued the commission in court.

And, on Tuesday, won.

Now broadband companies effectively have no regulations that constrain them, as the FCC has left itself with no statutory means to control what telecoms do with their internet networks.

A broadband company could, for instance, ink a deal with Microsoft to transfer all attempts to reach Google.com to Bing.com. The only recourse a user would have, under the ruling, would be to switch to a different provider — assuming, of course, they had an alternative to switch to.



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