On December 21, 2010, the FCC approved controversial net neutrality rules in a party-line vote. Democratic Commissioners Copps and Clyburn joined Chairman Genachowski in approving the Order, despite concerns that it did not go far enough. Republican Commissioners McDowell and Baker wrote lengthy dissents, arguing that the FCC had stepped far beyond its regulatory authority in approving Internet regulations.
The FCC received thousands of comments last week in response to its Notice of Inquiry (NOI) regarding the appropriate regulatory classification for broadband Internet service. At issue is the hotly-debated topic of whether and how broadband services should be regulated after the DC Circuit's recent Comcast decision, which held that the FCC lacked the authority to regulate a broadband service provider’s network management practices. See FCC Law Blog Post (Apr. 7, 2010).
On Tuesday, the U.S. Court of Appeals for the D.C. Circuit ruled that the FCC lacks the authority to regulate Internet service providers' network management practices. The unanimous decision by a three-judge panel immediately throws into question the FCC's ability to require Internet providers to treat all network traffic equally (a concept known as "net neutrality"). The ruling may also hinder the FCC's efforts to move forward with key aspects of its National Broadband Plan for expanding high-speed Internet service nationwide.
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