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FCC net neutrality blueprint TRASHED by US appeals court

Watchdog doesn't have authority to police traffic, judges rule

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Updated A US appeals court has ruled that net neutrality measures put in place by America's Federal Communications Commission are invalid.

The FCC's latest attempt to compel ISPs to treat all traffic on an equal basis suffered a significant blow, after the US Court of Appeals for the District of Columbia Circuit said (PDF):

[E]ven though the commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates.

Given that the commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.

Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.

The watchdog prefers the term "internet openness" over net neutrality, and the rules - among other things - were used by the FCC to impose anti-blocking rules on fixed and mobile broadband providers, prohibiting those telcos from preventing access to lawful content, apps, services and non-harmful devices beyond "reasonable" network throttling.

Verizon argued that the FCC was stepping beyond its statutory authority by claiming that the regulator was "arbitrary and capricious", and was violating the telco's right to free speech and control over what and how its networks operate.

The FCC previously said that its demand for an "open internet" establishes basic rules for all ISPs, both fixed and mobile, so it's not directed at anyone in particular and it doesn't interfere with specific licences.

Today's ruling comes in the wake of US mega-telco AT&T's announcement of a controversial "sponsored data" programme – where content providers foot the bill for wireless broadband access to their services. Critics say it puts the telco "in the business of picking winners and losers on the Internet, threatening the open Internet, competition and consumer choice".

In 2011, Verizon announced it was taking the FCC to the Court of Appeals in Washington DC to strike down that order.

Today, it succeeded. ®

Update

In a statement released after the court's decision, FCC chairman Tom Wheeler said that an appeal was a possibility. "We will consider all available options, including those for appeal," he wrote, "to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans."

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