Net Neutrality is Dead! Long Live Net Neutrality!

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from The Wall Street Journal,

It would be fair to assume, as many did, that Tuesday’s court ruling striking down the FCC’s net neutrality rules was bad news for the FCC’s net neutrality rules. But here’s the other take on the decision: As Obi-Wan Kenobi once warned Darth Vader, “If you strike me down, I shall become more powerful than you can possibly imagine.”

The logic goes this way: In its ruling tossing out the rules, the Appeals Court also affirmed the FCC’s broad power to regulate the relationship between broadband network operators and the Internet companies that push their content through the networks. And that authority is enough to enforce net neutrality principles.

Duke Law School professor Stuart Benjamin, a telecommunications law specialist who was a Distinguished Scholar at the FCC from 2009-11, wrote yesterday that the decision “establishes fairly broad FCC regulatory authority over broadband providers.”

While VerizonVZ +0.54%, which filed the suit seeking to strike down the laws, seemed to emerge victorious yesterday, Mr. Benjamin has a different take. “I am reasonably confident that if I were a member of Verizon’s board of directors and someone could have accurately predicted the content of today’s opinion before Verizon filed its lawsuit, as a director I would have said, “Then let’s not file the suit and let’s hope no one else does, either,” he wrote.

In its statement on the decision, Verizon said the court had rejected its position that the FCC does not have the authority to regulate broadband providers. “At the same time,” the company said, “the court found that the FCC could not impose last century’s common carriage requirements on the Internet, and struck down rules that limited the ability of broadband providers to offer new and innovative services to their customers.”

TechFreedom, a libertarian think tank focused on technology, said the ruling was an unambiguous victory for the regulator. “The FCC may have lost today’s battle, but it just won the war over regulating the Internet,” it wrote.

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