"FCC’s Next Step on Net Neutrality: Blocking the States"

Margaret Harding McGill has published "FCC's Next Step on Net Neutrality: Blocking the States" in Politico.

The article states that Federal Communications Commission Chairman Ajit Pai's "Proposal to Restore Internet Freedom" order would pre-empt "state and local regulations attempting to regulate broadband in ways that run counter to the federal rules."

Six Ways to Contact Congress and the FCC to Support Net Neutrality

Matt Petronzio has published "Net Neutrality's in Trouble. Here's How to Fight for a Free and Fair Internet" in Mashable.

The article describes and provides links to six sites that you can use to easily contact Congress and the FCC to support net neutrality, including the Battle for the Net, 5 Calls, the Free Press Action Fund, the Electronic Frontier Foundation, CREDO Action, and the ACLU.

Widespread Reports That the FCC Chairman Plans to Kill Net Neutrality

There are a number of reports that Ajit Pai, the Chairman of the FCC, plans to repeal net neutrality rules in December. See the below articles for details.

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An Empirical Investigation of the Impacts of Net Neutrality

The Internet Association has released An Empirical Investigation of the Impacts of Net Neutrality.

Here's an excerpt:

The empirical evidence shows that the implementation of NN rules has had none of the negative impacts theorized by its critics a decade ago. Far from a great strain on infrastructure investment, network capacity, and innovative activity, NN rules have had no negative effect on the telecommunications sector in these areas. The sector has thrived while edge services have opened an entirely new economy bringing millions of new jobs and hundreds of thousands of new businesses to our economy. Net neutrality has been crucial for that development.

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"Net Neutrality in Court This Week: The Story of How We Got Here"

Harold Feld has published "Net Neutrality in Court This Week: The Story of How We Got Here" in Net Neutrality.

Here's an excerpt:

Earlier this year, the Federal Communications Commission adopted new rules to ensure the Internet remains an open platform for consumers and innovators. The new rules (adopted as part of the Open Internet Order) are a capstone to over a decade of policy battles and litigation over how the FCC regulates broadband Internet service. For close observers of the net neutrality saga, this Friday brings a sense of déjà vu,, as the agency again heads to Court to defend net neutrality rules at oral argument.

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"’Stay With Me’: ISPs Head to Court to Fight New Net Neutrality Rules"

Meredith Filak Rose has published "Stay With Me': ISPs Head to Court to Fight New Net Neutrality Rules" in Public Knowledge's Net Neutrality Blog.

Here's an excerpt:

It's been almost three months since the FCC issued its order reclassifying Internet Service Providers as Title II telecommunications carriers and establishing strong net neutrality rules. No one was surprised when the ISPs cried foul and sued to overturn the ruling. . . .

Earlier this week, the ISPs attempted to stop the clock by arguing that the regulations should be delayed until after the lawsuit has worked its way completely through the courts-a process that will, in all likelihood, take years.

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"The Net Neutrality Saga: A Long-Expected Journey"

Public Knowledge has released The Net Neutrality Saga: A Long-Expected Journey by Kate Forscey.

Here's an excerpt:

Meanwhile, some members of Congress are also taking aim at the FCC's rules, introducing a slew of bills, each purporting to address some part of the agency process that only seem to be in response to the FCC's rules. . . .

  • MORE FLIES WITH HONEY: First, Senators Thune and Upton introduced bills before the FCC even voted, sensing the strong regulations coming and hoping to head the Commission off at the pass. They claim the bill legislatively protects net neutrality by preventing non-throttling and non-blocking. . . More importantly, the bill revokes the Commission's authority over any other aspect of the broadband ecosystem, forever. . . .
  • SALTING THE EARTH:  An alternative—but unsurprising—attack came from a different faction of Congressional Republicans, headed by Rep. Collins. Once the rules hit the Federal Register, the clock starts ticking on the Congressional Review Act—which allows Congress to review a "major" rule issued by any federal agency before the rules take effect (so, 60 days). The resolution ("CR") only needs a simple majority to pass in the House and the Senate—although the President can veto it, and likely would in this case. . . .
  • AND THE "REFORM" KITCHEN SINK: Most recently, three members dropped three different draft "FCC process reform" bills, each of which aims to restructure how the agency functions.

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"Public Knowledge Applauds FCC for Delivering Strong Open Internet Rules"

Public Knowledge has released "Public Knowledge Applauds FCC for Delivering Strong Open Internet Rules."

Here's an excerpt:

Today, the Federal Communications Commission published its Open Internet Report and Order. The order details strong rules designed to prevent Internet Service Providers from blocking, throttling or using paid prioritization to control how Americans use the internet. . . .

An initial review shows that the order uses Title II to deliver the strong rules the Chairman promised and consumers expect. It includes simple and clear bright-line rules of no blocking, no throttling, and no paid prioritization. It prohibits unreasonable interference with consumer Internet use and strengthens transparency requirements. The Order also shows that the decision is rooted in the opinions, arguments, and legal reasoning of almost 4 million people in the extensive record gathered through this transparent process. . . .

The Order does not create new fees and taxes for consumers. It does not create rate regulation or tariffs. The FCC was careful to forbear from 27 provisions of Title II and over 700 rules and regulations. This effort creates strong protections for consumers without harming the investment that has driven the growth of the Internet into the essential communications tool for the 21st century. It is no wonder that it has such broad support from technology companies big and small, non-tech companies, racial justice and public interest groups, some Internet Service Providers, venture capitalists and investors.

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"FCC Adopts Strong, Sustainable Rules to Protect the Open Internet"

The FCC has released "FCC Adopts Strong, Sustainable Rules to Protect the Open Internet."

Here's an excerpt:

Today, the Commission—once and for all—enacts strong, sustainable rules, grounded in multiple sources of legal authority, to ensure that Americans reap the economic, social, and civic benefits of an Open Internet today and into the future. These new rules are guided by three principles: America's broadband networks must be fast, fair and open—principles shared by the overwhelming majority of the nearly 4 million commenters who participated in the FCC's Open Internet proceeding. Absent action by the FCC, Internet openness is at risk, as recognized by the very court that struck down the FCC's 2010 Open Internet rules last year in Verizon v. FCC. . . .

Bright Line Rules: The first three rules ban practices that are known to harm the Open Internet:

  • No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
  • No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
  • No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind-in other words, no "fast lanes." This rule also bans ISPs from prioritizing content and services of their affiliates.

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President Obama Releases Net Neutrality Statement

President Obama has issued a statement about net neutrality.

Here's an excerpt:

The FCC is an independent agency, and ultimately this decision is theirs alone. I believe the FCC should create a new set of rules protecting net neutrality and ensuring that neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online. The rules I am asking for are simple, common-sense steps that reflect the Internet you and I use every day, and that some ISPs already observe. These bright-line rules include:

  • No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player—not just those commercially affiliated with an ISP—gets a fair shot at your business.
  • No throttling. Nor should ISPs be able to intentionally slow down some content or speed up others—through a process often called "throttling"—based on the type of service or your ISP's preferences.
  • Increased transparency. The connection between consumers and ISPs—the so-called "last mile"—is not the only place some sites might get special treatment. So, I am also asking the FCC to make full use of the transparency authorities the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet.
  • No paid prioritization. Simply put: No service should be stuck in a "slow lane" because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet's growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect.

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"Keeping Up With… Net Neutrality"

ACRL has released "Keeping Up With… Net Neutrality".

Network neutrality, a term coined by Columbia Law School professor Tim Wu in 2003[1], is the idea that an internet service provider (ISP) should treat all the data that travels through its network equally, regardless of the source, destination, or content of that data. In practice, this means that the data packets that make up streaming video, images from a digital archive, massively multiplayer online games, and class material in a course management system are all delivered from server to user indiscriminately, with minor modifications for network optimization. Discriminating against or blocking content from reaching an end user (e.g. slowing down certain websites like Netflix or blocking access to a service like Apple's FaceTime) violates the principle of net neutrality.

Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

Net Neutrality: FCC Chairman Tom Wheeler Issues Statement on FCC’s Open Internet Rules

FCC Chairman Tom Wheeler has issued a statement on the FCC's open internet rules.

Here's an excerpt from Public Knowledge's Sherwin Siy's analysis:

In short, the FCC is keeping all of its possible tools in play. From a legal standpoint, the obvious answer would be to follow the roadmap laid out by the D.C. Circuit's opinion and reclassify broadband as a telecommunications service. That would give the FCC all the authority it needs to preserve net neutrality. But the D.C. Circuit also acknowledged that section 706 gives the FCC broad power to do lots of other things, so long as they will encourage the deployment of broadband. . . .

Speaking of what you can do with section 706, the D.C. Circuit's opinion makes it pretty clear that, while you might not be able to do something that looks too much like traditional common carrier regulation with it, there's a heck of a lot you can do with it. For instance, Wheeler notes, the FCC would seem to have the power overturn state laws that ban communities from setting up their own broadband networks—laws passed with the lobbying muscle of ISPs that don't want the competition. The outer bounds of section 706 are now open for discussion—and they may provide a scope of regulatory power as broad as Title II might have (in some ways, potentially broader). That's another reason to have proceedings on section—ensuring that its authority is used to encourage deployment and competition, and not stray into more troubling areas like censorship or copyright filtering. This, too, should be a clue to the path ahead—one where Title II isn't a political polarizer, but instead a simple, direct application of the FCC's job to protect an open internet.

Read more about it at "FCC Thinks It Can Overturn State Laws That Restrict Public Broadband."

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"The Open Internet Preservation Act"

Several Democratic Senators have introduced "The Open Internet Preservation Act" in the House.

Here's an excerpt from the announcement:

Today, Senators Edward J. Markey (D-Mass.), Richard Blumenthal (D-Ct.), Al Franken (D-Minn.), Tom Udall (D-N.M.), Ron Wyden (D-Ore.), and Jeff Merkley (D-Ore.) introduced S. 1981, "The Open Internet Preservation Act", with House Energy and Commerce Committee Ranking Member Henry A. Waxman (D-Calif.) and Communications and Technology Subcommittee Ranking Member Anna Eshoo (D-Calif.) introducing companion legislation H.R. 3982, to protect consumers and innovation online. Last month, the D.C. Circuit struck down the Federal Communications Commission's (FCC) Open Internet rules preventing broadband providers from blocking or discriminating against content online. The bill would restore these rules until the FCC takes new, final action in the Open Internet proceeding.

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Net Neutrality, RIP?

While it could be appealed, the U.S. Court of Appeals for the D.C. Circuit's Verizon v. FCC ruling may well be the death knell of net neutrality given that an unfavorable Supreme Court ruling could make the situation worse by eliminating its last legal vestiges.

What now? In my 1996 "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper, I had this to say about the prospects of net neutrality's demise:

There are many unknowns surrounding the issue of Net neutrality, but what is clear is that it is under assault. It is also clear that Internet services are more likely to require more, not less, bandwidth in the future as digital media and other high-bandwidth applications become more commonplace, complex, and interwoven into a larger number of Internet systems.

One would imagine that if a corporation such as Google had to pay for a high-speed digital lane, it would want it to reach as many consumers as possible. So, it may well be that libraries' Google access would be unaffected or possibly improved by a two-tier (or multi-tier) Internet "speed-lane" service model. Would the same be true for library-oriented publishers and vendors? That may depend on their size and relative affluence. If so, the ability of smaller publishers and vendors to offer innovative bandwidth-intensive products and services may be curtailed.

Unless they are affluent, libraries may also find that they are confined to slower Internet speed lanes when they act as information providers. For libraries engaged in digital library, electronic publishing, and institutional repository projects, this may be problematic, especially as they increasingly add more digital media, large-data-set, or other bandwidth-intensive applications.

It's important to keep in mind that Net neutrality impacts are tied to where the choke points are, with the most serious potential impacts being at choke points that affect large numbers of users, such as local ISPs that are part of large corporations, national/international backbone networks, and major Internet information services (e.g.,Yahoo!).

It is also important to realize that the problem may be partitioned to particular network segments. For example, on-campus network users may not experience any speed issues associated with the delivery of bandwidth-intensive information from local library servers because that network segment is under university control. Remote users, however, including affiliated home users, may experience throttled-down performance beyond what would normally be expected due to speed-lane enforcement by backbone providers or local ISPs controlled by large corporations. Likewise, users at two universities connected by a special research network may experience no issues related to accessing the other university's bandwidth-intensive library applications from on-campus computers because the backbone provider is under a contractual obligation to deliver specific network performance levels.

Although the example of speed lanes has been used in this examination of potential Net neutrality impacts on libraries, the problem is more complex than this, because network services, such as peer-to-peer networking protocols, can be completely blocked, digital information can be blocked or filtered, and other types of fine-grained network control can be exerted.

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Net Neutrality: ALA Issues Statement on U.S. Court of Appeals for the D.C. Circuit Verizon v. FCC Ruling

ALA has issued a statement by Barbara Stripling on the U.S. Court of Appeals for the D.C. Circuit Verizon v. FCC ruling.

Here's an excerpt:

The court's decision gives commercial companies the astounding legal authority to block Internet traffic, give preferential treatment to certain Internet services or applications, and steer users to or away from certain web sites based on their own commercial interests. This ruling, if it stands, will adversely affect the daily lives of Americans and fundamentally change the open nature of the Internet, where uncensored access to information has been a hallmark of the communication medium since its inception.

Public libraries have become leading providers of public Internet access, providing service to millions of students, elderly citizens, people seeking employment and many others every single day. Approximately 77 million people use public library Internet access every year. These users of libraries' Internet services, and people all across the country, deserve equal access to online information and services.

The ability of the Internet to spread and share ideas is only getting better. With modern technology, individuals and small groups can produce rich audio and video resources that used to be the exclusive domain of large companies. We must work to ensure that these resources are not relegated to second-class delivery on the Internet—or else the intellectual freedoms fostered by the Internet will be seriously constrained. ALA will work with policy-makers and explore every avenue possible to restore the long-standing principle of nondiscrimination to all forms of broadband access to the Internet.

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Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like

The Center for Internet and Society at Stanford Law School has released Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like.

Here's an excerpt from the announcement:

This paper proposes a framework that policy makers and others can use to choose among different options for network neutrality rules and uses this framework to evaluate existing proposals for non-discrimination rules and the non-discrimination rule adopted by the FCC in its Open Internet Order. In the process, it explains how the different non-discrimination rules affect network providers' ability to offer Quality of Service and which forms of Quality of Service, if any, a non-discrimination rule should allow.

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Know Your Limits: Considering the Role of Data Caps and Usage Based Billing in Internet Access Service

Public Knowledge has released Know Your Limits: Considering the Role of Data Caps and Usage Based Billing in Internet Access Service by Andrew Odlyzko, Bill St. Arnaud, Erik Stallman; and Michael Weinberg.

Here's an excerpt:

Regardless of the motivation driving its implementation, usage-based pricing has the potential to significantly impact how networks are designed and used. This, in turn, impacts the innovation that relies on those networks. Before deciding if and when usage-based pricing is desirable, it is critical to fully understand the history of usage-based pricing, how it impacts markets, and both the benefits and harms that such a model can bring.

This paper aims to explain the basic issues surrounding usage-based versus flat-rate pricing. Section I examines the trend towards usage-based pricing in both the wired and wireless markets. Section II then considers the benefits and justifications for using usage-based pricing. This is followed in Section III by a review of the history and economics of flat rate pricing. Since broadband access is central to so many national and societal goals, the penultimate section—Section IV—discusses the problems that might be caused by usage-based pricing. Finally, we end with a series of conclusions and recommendations for responsible implementation of usage-based pricing.

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ALA Issues Action Alert: "Ask Your Senators to Vote ‘NO’ on Overturning Net Neutrality Order"

ALA has issued an action alert: "Ask Your Senators to Vote 'NO' on Overturning Net Neutrality Order."

Here's an excerpt:

This week (Nov. 7-11), the full U.S. Senate will vote on Senate Joint Resolution 6, a bill to overturn the Federal Communications Commission's (FCC) order passed to adopt "net neutrality."

Please call your Senators and ask them to vote "NO" on S.J. Res. 6. Your call sends a loud and clear message that libraries depend on an open and nondiscriminatory Internet to provide our patrons, the public, unfettered access to information.

Additional talking points:

  • Voting no helps preserve the openness of the Internet which is essential to our nation's educational achievement, freedom of speech and economic growth.
  • Without an open and neutral Internet, there is great risk that commercial Internet Service Providers (ISPs) will give higher priority to some users (e.g. give entertainment priority over education).
  • ISPs may seek to impose additional fees on Internet users which could drastically impact libraries who require much greater bandwidth than households to serve their patrons, many at one time.

Read more about it at "Network (Net) Neutrality Legislative Activity."

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House Passes H.R.1, Blocks Funding for Implementing FCC’s Net Neutrality Rules

The U.S. House of Representatives passed H.R.1—Full-Year Continuing Appropriations Act, 2011. Sixty-seven of 583 proposed amendments passed, including number 404 by Rep. Greg Walden (R-Ore.) that blocks funding to support the implementation of the FCC's net neutrality rules and number 196 by Rep. Tim Walberg (R-Mich.) that cuts funding for the National Endowment for the Arts by $20.5 million.

Read more about it at "Advocacy Works: Garrett Backs Down on Amendment to Zero Out IMLS," "Rogers: CR is a 'Monumental Accomplishment' for American Taxpayers," and "What Budget-Cutting Amendments Has the House Passed This Week?"

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Net Neutrality Alert: Public Knowledge Announces the "Internet Strikes Back" Day

Public Knowledge has announced the "Internet Strikes Back" Day (2/17/11) to support net neutrality.

Here's an excerpt from the press release:

Public Knowledge has set this Thursday, Feb. 17, as "Internet Strikes Back" day to counter Congressional opposition to a fair and open Internet.

The day was chosen because it is one day after members of the House Energy and Commerce Committee hold a hearing to unveil legislation that would roll back current Federal Communications Commission (FCC) Net Neutrality rules and prohibit the Commission from enacting future rules.   On that day following the hearing, members of the public are being asked to call their member of Congress and oppose the legislation.

PK has set up a Web site, www.theinternetstrikesback.org which will allow visitors to sign up for mobile action alerts, including a text message reminder, and download an Internet Strikes Back badge for web sites.

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"Issue Brief: FCC’s Net Neutrality Rules and Implications for Research Libraries"

The Association of Research Libraries has released "Issue Brief: FCC's Net Neutrality Rules and Implications for Research Libraries."

Here's an excerpt:

FCC Votes to Enact "Net Neutrality" Rules: After years of debate and consideration, on December 21, 2010, the Federal Communications Commission ("FCC") voted 3-2 in favor of enacting a narrow set of net neutrality rules to regulate the practices of broadband providers. "Net neutrality" is the principle that Internet users should have the right to access and provide content and use services via the Internet as they wish, and that network operators should not be allowed to "discriminate"—slow, block, or charge fees—for Internet traffic based on the source or content of its message. . . .

The wording of the net neutrality rules, advanced by FCC Chairman Julius Genachowski, appears to reflect an attempt at a compromise between network operators and advocates for strong net neutrality protections—including ARL, ALA, and EDUCAUSE. Ultimately, however, the limited scope of protection in the rules has not fully satisfied the concerns voiced by parties on both sides of the issue and thus has set the stage for further debate over regulation in the courts and in Congress.

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ALA, ARL, and EDUCAUSE File Comments Supporting FCC’s "Third Way" Net Neutrality Proposal

The American Library Association, the Association of Research Libraries, and EDUCAUSE have filed comments with the FCC supporting the FCC's "Third Way" proposal.

Here's an excerpt from the press release:

The American Library Association (ALA) filed comments(pdf) with the Federal Communications Commission (FCC) on the commission’s Notice of Inquiry (NOI) on the Framework for Broadband Internet Service, commonly referred to as the "Third Way." The ALA has a strong track record of advocating for an open, or neutral, Internet. The ALA sees the Third Way as the most appropriate level of oversight as it provides the flexibility needed by the Internet community and also provides key protections to guarantee the public has equal access to the wide variety of online content readily available today.

The NOI proposes the FCC use a set of six provisions from Title II, two of which are particularly important to the library community. The ALA comments bring attention to the significance of Section 202, nondiscrimination, and Section 254, universal service. Including these sections is paramount to ensuring that libraries can continue to provide quintessential services to their patrons.

The ALA has long supported the concept of nondiscrimination which treats all Internet content equally. Libraries across the country provide the public with access to high quality educational and recreational online content – at no fee to the patron. In fact, 75 percent of libraries offer access to online databases that include business journals, full-text news articles, and job certification exams. Libraries provide patrons with downloadable and streaming audio and video content, as well as E-books. The ALA cautions that without Section 202 on nondiscrimination, this educational and other content could be relegated to the Internet slow lane by service providers in favor of content from the private sector.

EDUCAUSE: 7 Things You Should Know About Net Neutrality

EDUCAUSE has released 7 Things You Should Know About Net Neutrality.

Here's an excerpt from the announcement:

Net neutrality is the principle that broadband Internet providers will handle all network traffic in a nondiscriminatory manner. The Internet was conceived as an "open" service that would operate under "common carrier" regulations, which requires providers to serve any customers who seek their services and to do so "indifferently." The principle was conceived to protect consumers from transportation providers that had a monopoly on transport facilities such as roads or canals and, later, wirelines. In 2005, common carrier requirements for broadband providers were lifted, opening the door to the possibility that providers could discriminate against certain users and certain content. Entities including higher education, public interest groups, and content companies are calling for federal authorities to guarantee net neutrality; many broadband providers oppose new regulations.

Net Neutrality: U.S. Court of Appeals for DC Rules FCC Lacks Authority to Regulate Comcast's BitTorrent Throttling

The U.S. Court of Appeals for the District of Columbia has ruled in Comcast v. FCC that the Federal Communications Commission lacks the authority to require Comcast to stop throttling BitTorrent traffic.

Here's an excerpt:

Although the Commission once enjoyed broader authority over cable rates, see id. § 543(c)(4), its current authority is limited to setting standards for and overseeing local regulation of rates for "basic tier" service on certain cable systems. See id. § 543(b). In the Order, the Commission does not assert ancillary authority based on this narrow grant of regulatory power. Instead, the Order rests on the premise that section 1 gives the Commission ancillary authority to ensure reasonable rates for all communication services, including those, like video-ondemand, over which it has no express regulatory authority. . . .

It is true that "Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies." Resp't's Br. 19. It is also true that "[t]he Internet is such a technology," id., indeed, "arguably the most important innovation in communications in a generation," id. at 30. Yet notwithstanding the "difficult regulatory problem of rapid technological change" posed by the communications industry, "the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority." NARUC II, 533 F.2d at 618 (internal quotation marks and footnote omitted). Because the Commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any "statutorily mandated responsibility," Am. Library, 406 F.3d at 692, we grant the petition for review and vacate the Order.

The FCC issued the following statement about the ruling:

The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. 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. 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.

Read more about it at "Comcast 1, FCC 0: What to Look For in the Inevitable Rematch"; "Court Rejects FCC Authority Over the Internet"; "Is Net Neutrality Dead? (FAQ)"; and "Public Knowledge Explains: The Comcast-BitTorrent Decision."