Thursday, October 06, 2011

D.C. Circuit to Decide Fate of FCC's Net Neutrality Regulations, Again

News outlets are now reporting that lawsuits challenging the legality of the FCC's order imposing network neutrality regulations will go to the U.S. Court of Appeals for the District of Columbia Circuit. It was the D.C. Circuit that hammered the agency a year ago April in Comcast v. FCC (2010) in its prior attempt to impose net neutrality mandates. As I blogged in "Comcast v. FCC: A Game Changer For Net Neutrality Regulation," the D.C. Circuit thoroughly and forcefully repudiated the agency's alleged jurisdictional basis for imposing net neutrality mandates.

For starters, it is highly probable the D.C. Circuit will strike down the FCC's net neutrality regulations once again on jurisdictional grounds. FSF's public comments to the FCC in its Section 706 Inquiry, for instance, point out that Section 706 is a directive that the agency exercise regulatory forbearance and other means to accelerate deployment "by reducing barriers to infrastructure investment" – operative term being "reducing" – and not an independent grant of regulating authority, as the FCC has recently re-interpreted it.

There are equally strong reasons for regarding the FCC's net neutrality regulations as "contrary to constitutional right." Much of FSF's writings regarding net neutrality have concentrated on the significant First Amendment problems posed by such regulations.

With the FCC's net neutrality regulations only recently published in the Federal Register and going into effect on November 20, this D.C. Circuit sequel case could spell a short life for the FCC's new rules.