Get your news from a source that’s not owned and controlled by oligarchs. Sign up for the free Mother Jones Daily.


Does yesterday’s court ruling in Comcast v. FCC mean that net neutrality is dead unless Congress steps in with new legislation? After reviewing the details of the court’s ruling, David Post weighs in:

So what does this portend for net neutrality rules? Can the Commission proceed with its rulemaking efforts along those lines, or does it need some additional statutory authorization from Congress before it can do so? That’s the million dollar question, and I’m not sure that anyone can say for sure at this point what the answer is. There are (at least) two good arguments the agency might rely on to support that rulemaking.

 First, it can change its mind about the classification of Internet services. If Internet service were classified as a “telecomm service,” there would be no doubts about the FCC’s regulatory authority. The Supreme Court has just recently endorsed the view that the agency can change its mind in matters such as this (FCC v. Fox), as long as it does so in a reasonable manner and explains why it has done so.

The other possibilities are discussed in part IV(B) of the Court’s opinion. There are a number of statutory provisions that might well have supported the FCC’s actions here: sec. 706 (which provides that the Commission “shall encourage the depoloyment on a reasonable and timely basis of advanced telecommunications capability to all Americans . . .”), sec. 201(b) (which allows the commission to regulate common carrier charges, which plausibly could have been affected by Comcast’s actions insofar as they might have shifted traffic to other carriers). But in both cases, the Court found that the FCC had waived those arguments by not presenting them in the Comcast Order itself. That, of course, may provide an opening, in any future proceeding, for the Commission to be a little more careful about finding, citing, and explaining its authority before acting, and might provide the agency a way out of this apparent jurisdictional conundrum.

This sounds like (relatively) good news. The first best option is for Congress to write net neutrality regulations into the law, but that’s been shot down enough times over the past few years that it seems unlikely to happen anytime soon. The second best option, then, is for the FCC to figure out a different legal justification for imposing the rules itself. Post’s read of the opinion seems to suggest that this is quite feasible.

BEFORE YOU CLICK AWAY!

“Lying.” “Disgusting.” “Scum.” “Slime.” “Corrupt.” “Enemy of the people.” Donald Trump has always made clear what he thinks of journalists. And it’s plain now that his administration intends to do everything it can to stop journalists from reporting things they don’t like—which is most things that are true.

No one gets to tell Mother Jones what to publish or not publish, because no one owns our fiercely independent newsroom. But that also means we need to directly raise the resources it takes to keep our journalism alive. There’s only one way for that to happen, and it’s readers like you stepping up. Please help with a donation today if you can—even a few bucks will make a real difference. A monthly gift would be incredible.

payment methods

BEFORE YOU CLICK AWAY!

“Lying.” “Disgusting.” “Scum.” “Slime.” “Corrupt.” “Enemy of the people.” Donald Trump has always made clear what he thinks of journalists. And it’s plain now that his administration intends to do everything it can to stop journalists from reporting things they don’t like—which is most things that are true.

No one gets to tell Mother Jones what to publish or not publish, because no one owns our fiercely independent newsroom. But that also means we need to directly raise the resources it takes to keep our journalism alive. There’s only one way for that to happen, and it’s readers like you stepping up. Please help with a donation today if you can—even a few bucks will make a real difference. A monthly gift would be incredible.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate