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Network Neutrality and the DC Circuit Decision

Posted on by Fletcher Kittredge

video.yahoofinance.com@5f900b6a-dcb0-3512-8217-dc831ac1d453_FULLEarlier last month, there was a Federal Appeals Court ruling that has a significant impact on the way the internet is regulated in the US. The court said the internet may be treated as a “telecommunications service” – as a public utility, rather than as a lightly regulated competitive “information service”. This has implications for Maine that are worth exploring.

The case involved network neutrality. For years, the FCC has felt that network neutrality is vital and attempted to require it. At the same time, the FCC recognized that the internet has prospered under a light regulatory regime. The FCC tried several ways of requiring network neutrality while still regulating with a light hand. All were struck down by the courts who pointed out that the FCC has far-reaching regulatory authority over telecommunications services, and if the internet is not a telecommunications service, then the FCC can not regulate it as if it is. If the FCC regulates the internet as a telecommunications service, it would potentially have to regulate many aspects of how the internet works.

In 2015, the FCC decided to take the bull by the horns and declare the internet is a telecommunications service. The FCC then tried to maintain the light regulatory regime by saying it would “forbear” from enforcing most regulations. Forbearance is how the FCC sought to thread the needle of requiring network neutrality while still not heavily regulating the internet.

The big corporate Internet Service Providers (ISPs) then sued the FCC in federal court claiming the internet was not a telecommunications service and thus could not be regulated. The federal appeals court upheld the FCC’s 2015 finding and while the ruling may be appealed further, it will be an uphill battle for the ISPs. At the federal level, the internet is a telecommunications service for now.

Taking an historical perspective, it makes sense that in the early days of the internet it was regulated as a luxury, but now that the internet is integral to most activity, it should be seen as required public utility. The internet has become essential for society. Lacking internet access cuts one off from the economy, disenfranchises from political engagement, and socially isolates. The most telling fact for me is that people under 30 will not move to a location without good internet.


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