Skorup on DC Circuit Court of Appeals Net Neutrality Ruling

Today, the DC Circuit Court of Appeals released its much-anticipated decision upholding the legality of the Federal Communication Commission’s decision to regulate the Internet with common carrier telephone regulations, the so-called net neutrality rules.

Congress declared in 1996 that the Internet should remain “unfettered from federal regulation.” Unfortunately the FCC has persisted in its decade-long effort to regulate online services and, via legal gymnastics, has convinced the court to uphold that decision. These Title II rules entangle the FCC in First Amendment-protected speech and create a permission-slip regime for new broadband services. The vague rules allow the agency to direct which services and which content ISPs can offer their customers. Finally, the agency’s Swiss cheese-like regulations and arbitrary enforcement will create a compliance mindset in fast-moving technology markets.

Our innovative technology and network companies should be focused on design and novel services. Until the rules are overturned in court or by Congress, these regulated firms instead will be distracted by compliance with legal minutiae and attempting to discern the FCC’s manufactured service classifications. The decision brings only brief finality to this chapter of FCC regulation. Advocates in industry, at nonprofits, and in the agency will continue to seek more government control of the Internet and design services according to their whims.