Let’s review. All was well
in Internet-land until 2015, when the Obama-era Federal Communications
Commission (FCC) reclassified broadband service as a Title II service —
the moral equivalent of making the Internet a 1930’s telephone service — and
then applied a series of regulations to the service. It was a drastic
change from decades of previous FCC stances and
from Congress’ own interpretation of the law,
and the shift produced a spate of lawsuits. In late 2017, FCC
Chairman Pai changed course to put broadband Internet back under Title I. Once
more, a number of groups sued. The key issue before the DC Circuit Court
was whether the Restoring Internet Freedom (RIF) order was arbitrary and
capricious.
On Tuesday, the DC Circuit Court of Appeals upheld the legality of the RIF order,
sort of. While the judges found “unconvincing” the arguments of those
opposing the FCC, they also ruled that the FCC had exceeded its authority when
it unilaterally barred states from adopting their own net neutrality
regulations. (California passed legislation last year, but it is not yet being
enforced.) This decision raises the specter of an Internet burdened by
myriad different rules of the game, and it means that the agency will have to
challenge each state provision in court.
The larger issue is that Congress has never passed a law making net neutrality
legal. The courts are constantly trying to rule based on a law that is
fundamentally ambiguous. Now it is also up in the air as to who is in
charge. It is time for Congress to step up and solve this
problem, putting in place a legal foundation that grants consumers control
while still allowing for innovation to flourish on the Internet. And in
the process, Congress should clearly settle the right of the
federal government to be the sole regulator of the Internet.
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