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Net Neutrality Decision: What Matters, What Doesn't

On June 14, the US Court of Appeals for the District Of Columbia gave ISPs the news they had been dreading: The Federal Communications Commission's rules on net neutrality are just fine, because internet access can be legally considered a public utility.

The decision had been eagerly awaited, but no one involved or watching believes that this decision marks the end of the debate or the battle.

So let's take a look at the decision, why it matters, and why it doesn't.

The decision

The three-judge panel upheld the FCC's regulations -- and with them, the FCC's right to regulate ISPs -- in a 2-1 decision. This is the same court that struck down two previous FCC regulatory attempts, so this decision indicates that the FCC finally figured out the combination of technical rule-making and justification that the judges would find compelling.

Within the decision is wording that recognizes a significant change that has occurred within the ISP world: We've shifted from ISPs that also provided a great deal of content (the old Compuserve and AOL model) to ISPs that provide a connection to content created by others.

The FCC's rules say, and the court now agrees, that the ISP must be a neutral connection.

In a dissent, one judge noted that the FCC had not justified the need for neutrality regulation. It's important to note that he didn't say that the FCC doesn't have the statutory authority to regulate the ISPs -- only that it has not yet shown that the regulation is necessary.

If the decision of this court stands, net neutrality rules will be in force. What we don't know is whether regulations will be allowed to stand. That brings us to why this decision matters -- and why it might not matter at all.

Why the decision matters

The most surprising thing about the decision was its breadth.

Regulatory court battles frequently end with decisions that leave each side able to claim some victory, and each side with grounds for an appeal. In this case, though, the FCC ran the table, winning on every point. Where two previous net neutrality attempts had run aground on fairly technical rocks, this time the FCC staff appeared to have learned lessons and applied them in ways that the court found convincing.

Indeed, the court ruled in the FCC's favor in two critical ways.

First, the court agreed that the FCC has the statutory ability to regulate ISPs' behavior at least in part because ISPs are basically public utilities. Next, the court found that the particular regulations in dispute are legal applications of the FCC's regulatory ability.

Of all that, the definition of ISPs as utilities has the widest implication. With that decision, suddenly all sorts of regulations become possible, and that is the decision that the ISPs are most likely to want the Supreme Court to overturn.

The next step, the one to the Supreme Court, explains why this decision might not matter at all.

Read the rest of the article on InformationWeek.