Judges Karen Lecraft Henderson, David S. Tatel and Brett M. Kavanaugh ruled that the FCC's net neutrality order is a "rulemaking document subject to publication in the Federal Register and is not a licensing decision 'with respect to specific parties.'" Since the order had not yet been published in the Federal Register, the judges found that the "prematurity" of the carriers' lawsuits was "incurable."
ANALYSIS:
Verizon and MetroPCS earlier this year filed lawsuits challenging the FCC's authority to enforce any kind of net neutrality rules. Verizon challenged the FCC's authority in the same appeals court that ruled last year that the FCC did not have the authority to regulate ISP under its current legal framework.
The suits came in response to the FCC passing net neutrality rules late last year that were very similar to the joint proposal that Google and Verizon unveiled last summer that imposed net neutrality on wireline broadband while leaving broadband mostly alone. So while the FCC's order mandates that wireline broadband providers are not allowed to "block lawful content, , services or non-harmful devices, subject to reasonable network management," wireless providers are only barred from blocking content or applications that directly compete with their own voice or video telephony services.
Net neutrality refers to the principle that ISPs should not be allowed to block or degrade Internet traffic from their competitors in order to speed up their own. The push for net neutrality began in 2005, when incumbent carriers successfully lobbied the FCC to repeal common carrier rules that required the incumbents to allow ISPs such as EarthLink to buy space on their broadband networks at discount rates. The battle over net neutrality has been waged for years with consumer groups and some Internet companies in favor and carriers almost universally opposed.
In the wake of D.C. Circuit Court of Appeals' ruling against the FCC last year, it was generally thought that the FCC essentially had three basic options for moving on net neutrality: It could do nothing, it could wait for Congress to draft network neutrality legislation or it could decide to reclassify broadband services as telecommunications, rather than information services, to gain regulatory authority. Instead of enacting any of these options, however, the FCC cobbled together a watered-down net neutrality proposal that utilizes a good deal of the same legal justification that was shot down by last year's court appeals court ruling. In particular, that the FCC's reliance on direct authority from Section 706 of the 1996 Telecommunications Act could prove problematic since it was a major piece of the FCC's failed defense last year.
in Network World's Data Center section.