FCC hints re-classification is next step in net neutrality fight

The FCC on Tuesday described a federal court ruling that it could not regulate broadband services as an invalidation of the agency's "approach," but not its ultimate goal.

In a statement released not long after the D.C. federal appellate court sided unanimously with Comcast, which had long challenged the FCC's authority in this realm, the agency's top spokeswoman stressed the FCC would not back down from the net neutrality fight.

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“The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans," spokeswoman Jen Howard said. "It will rest these policies -- all of which will be designed to foster innovation and investment while protecting and empowering consumers -- on a solid legal foundation."

“Today’s court decision invalidated the prior Commission’s approach to preserving an open Internet," she continued. "But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.”

Howard's remarks would seem to confirm early speculation that the FCC may try to re-classify broadband as a "Title II" service, over which the agency would have jurisdiction.

Currently, broadband services fall under the "Title I" category. While the FCC sought to argue differently, telling a federal appeals court that federal law afforded the agency "ancillary" jurisdiction over broadband ISPs, the court's judges ruled on a 3-0 vote that the commission "has failed to make that showing."

On face, the decision invalidates the agency's 2008 order that Comcast cease blocking users' access to Bit Torrent, a file-sharing protocol that Comcast says was slowing down its networks.

But in a larger sense, the ruling also threatens the FCC's subsequent ability to regulate ISPs and promote net neutrality, one of the chief principles of its just-released National Broadband Plan.

However, if the FCC does seek to re-classify broadband, it is likely to face another set of tough legal battles. Top ISPs, including Comcast as well as AT&T and Verizon, have signaled they would aggressively fight any such rule change. Verizon executives have even explicitly warned the agency recently not to travel the re-classification route.

"Saying it is unwise to classify broadband as a Title II service is an understatement," Tom Tauke, Verizon's executive vice president for public affairs, policy and communications, said last week.

"We would end up with years of court battles," he told C-SPAN's The Communicators.