Why Won’t the FCC Appeal the Court Ruling Striking Down Net Neutrality?

A news update. We wrote earlier about the DC court ruling against the FCC, the Internet, and net neutrality in a case brought by Verizon.

From the earlier piece:

Court Strikes Down FCC Open Internet Order

WASHINGTON — On Tuesday, the D.C. Circuit Court of Appeals struck down the Federal Communications Commission’s Open Internet Order. In its decision, the court said that the FCC lacked the authority to implement and enforce its rules under the legal framework the agency put forth.

The FCC’s 2010 order was intended to prevent broadband Internet access providers from blocking or interfering with traffic on the Web. Instead of reversing a Bush-era FCC decision that weakened the FCC’s authority over broadband, and establishing solid legal footing for its rules, former FCC Chairman Julius Genachowski pushed for rules under the complicated legal framework the court rejected today.

Now the news. The FCC has apparently decided to stand down and not put up a fight.

Berkeley law professor James P. Tuthill:

FCC throws in the towel, but public has right to know why

The Federal Communications Commission said last week that it would not appeal a court decision issued in January overturning the FCC’s net neutrality rules, Verizon vs. Federal Communications Commission.

Those rules prohibited discrimination and blocking by Internet service providers that provide high speed connections to the Internet.

Tom Wheeler, chairman of the FCC and an Obama appointee, said that the FCC supports an open Internet and will develop new rules to replace those thrown out by the court. But for practical purposes, he threw in the towel. And the just-announced deal between Comcast and Netflix for preferential delivery shows how quickly the industry will move to capitalize on its now-unrestrained power.

Verizon is a horrible legal precedent for the FCC and the Internet user and entrepreneurial communities because it severely restricts, if not eliminates, the FCC’s power to prohibit discrimination and anticompetitive acts by service providers. It seems obvious that the FCC would want the case overturned.

The article goes on to say that the FCC could have sought Supreme Court review. And there’s the usual revolving door, capture-by-industry problems:

The failure of the chairman to seek review raises legitimate questions about the reasons for declining to appeal. Previously, he was the president of the National Cable Television Association and president of the Cellular Telecommunications and Internet Association. Cable television and wireless providers strongly opposed the net neutrality rules, and they must be secretly congratulating themselves over Wheeler’s decision not to appeal.

Do read the piece. There’s more that I didn’t quote; it will help you flesh out your understanding.

I’m not sure what this will eventually mean. I hear that this could be just a tactical move by the FCC, but no one’s sure. In reality, they really need to reclassify the Internet, mis-classification being the ultimate cause of the current problem (see the second half of this piece for more). I’m don’t know, though, if they’re headed in that direction. We’ll have to see how this evolves (or doesn’t).