FCC's Wheeler vows to 'fight' after net neutrality rules struck down

FCC Chairman Tom Wheeler vowed to press on this week to ensure that the Internet remains free and open following a federal appeals court decision that struck down key sections of the commission's net neutrality rules. What remains unclear now though is how exactly Wheeler and other commissioners at the FCC will fight back, and what legal authority they will use.

"I intend to fight," Wheeler said Thursday during a speech in Washington, D.C., according to Bloomberg.

"The court invited the commission to act, and I intend to accept that invitation," he said, according to a C-SPAN transcript of his remarks quoted by The Verge. "Using our authority, we will readdress the concepts in the Open Internet Order as the court invited to encourage growth and innovation and enforce against abuse."

Wheeler said many Internet service providers have said they will continue to honor the FCC's Open Internet Order's concepts even though the court ruled against key sections of the order. "That's the right and responsible thing to do, and we take them up on their commitment," he said. "At the same time, we accept the court's invitation to revisit the structure of the rules that it vacated."

"The great revolution in the Internet is how it empowers individuals to both consume and create. It's the kind of opportunity that we're discussing here this morning," he said. "And to do so requires an accessible and open Internet, and we will fight to preserve that capability."

The ruling, from the U.S. Court of Appeals for the D.C. Circuit, said the FCC's so-called Open Internet Order, which established the rules, is invalid. The court said that the FCC overstepped its authority in issuing the rules.

The FCC in 2010 decided to classify broadband as an "information service" and not as a "telecommunications service," the classification used for traditional telephone companies, which must follow common carrier rules. By doing so, the court said the FCC could not then impose its "anti-discrimination" and "anti-blocking" rules on Internet providers; essentially because the FCC did not use the right classification, it couldn't then impose common carrier rules on "information service" providers. The court did uphold the FCC's ancillary authority to regulate broadband under Section 706 of the Telecommunications Act.

Asked for details of how the FCC would fight back after the speech, according to Bloomberg, Wheeler said, twice, "I'm going to accept the invitation. Watch." Wheeler has said the FCC may appeal the decision.

Besides that, the FCC could attempt to recover its oversight over broadband by revising its net neutrality rationale via its Section 706 authority. Additionally, the agency could attempt to classify broadband as a Title II common carrier service, which former FCC Chairman Julius Genachowski declined to do in 2010, and which many carriers and broadband providers oppose. The FCC could also use Congress' ongoing efforts to amend the 1996 Telecommunications Act as a way to assert its ability to issue net neutrality rules.

For more:
- see this Bloomberg article
- see this The Verge article
- see this GigaOM article
- see this separate The Verge article

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