That
was President Barack Obama's November 10 take on who gets to decide
whether new rules governing so-called "net neutrality" — regulating
broadband Internet providers as "common carriers" under the
Communications Act of 1934 — gets implemented.
[...] "Unfortunately, the court ultimately struck down the rules — not
because it disagreed with the need to protect net neutrality, but
because it believed the FCC had taken the wrong legal approach," Obama
claimed in his statement.
Which may be putting it mildly. To wit, the court said "Given that the
Commission has chosen to classify broadband providers in a manner that
exempts them from treatment as common carriers, the Communications Act
expressly prohibits the Commission from nonetheless regulating them as
such. Because the Commission has failed to establish that the
anti-discrimination and anti-blocking rules do not impose per se common
carrier obligations, we vacate those portions of the Open Internet
Order."
In other words, under the 1996 Telecommunications Act, Internet service
providers were exempted from being treated under Title II of the
Communications Act of 1934 as common carriers. Instead, they were be
treated as exempt "information services" providers by the FCC in an
initial 2002 determination.
Because of that, the FCC cannot now go back and treat them as if they
were common carriers, said the court. That is, not without the FCC
going back and reversing its determination.
Which is exactly what Obama wants the agency to do: "I believe the FCC
should reclassify consumer broadband service under Title II of the
Telecommunications Act."
But that is untested. Can the FCC just change its mind? [
Obama
skips Congress on ‘net neutrality’]
