In Verizon v. FCC, a three-judge panel of the U.S. Court of Appeals for the District of Columbia overturned the Federal Communications Commission’s (“Commission” or “FCC”) anti-discrimination and anti-blocking provisions of the Open Internet regime. The panel vacated each measure as “per se common carrier obligations” impermissibly imposed on providers of broadband Internet service, which is currently defined as an information service not subject to common carrier restrictions imposed under Title II of the Communications Act. The court did conclude that the Commission has the authority to promulgate rules governing broadband providers’ treatment of Internet traffic. Specifically, the court stated that Section 706 of the 1996 Telecommunications Act “furnishes the Commission with the requisite affirmative authority to adopt the regulations.” Any such rules, however, cannot contravene other express statutory mandates. Thus, since the FCC has classified broadband providers as information service providers exempt from common carriage requirements, it cannot impose common carriage regulations. This distinction and the panel’s order to remand the case for further review presents Chairman Wheeler with several options: (i) appeal the decision; (ii) try to adopt more limited rules that are consistent with the information service classification; or (ii) reclassify broadband services as telecommunications services. The Chairman’s choice will carry broad implications for the future of communications and technology policy.
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