Tatel's decision threw the rules back to the FCC, leaving open additional action from the agency.
One simple way, at least on its face, to get around the prohibition on applying common carrier rules to broadband would be for the FCC to reclassify broadband, subject to the common carrier rules that traditional voice service is subject to. Several groups supporting net neutrality rules have long called on the FCC to reclassify broadband and move the service to the FCC's so-called Title II common carrier authority.
If the FCC doesn't appeal, it "could broadly do one of two things: change the authority to fit the rules or change the rules to fit the authority," said Public Knowledge's Weinberg. "The opinion makes it clear ... that the FCC would be well within its rights to reclassify if it saw fit."
But the FCC could also look to craft new rules "to fit the authority," Weinberg added. "The court made it clear that the FCC has authority over broadband access generally. That would mean that the FCC would make new rules that address the things it cares about in Internet access in a way that does not get too close to Title II common carrier-style regulation."
Reclassification, however, would bring the wrath of both congressional Republicans and the carriers down upon the FCC. "It would be regulatory World War III," said Scott Cleland, operator of NetCompetition.org, an online forum representing broadband carrier interests.
Observers on both sides of the net neutrality debate suggested the FCC's best course of action, while not easy, may be to write new rules that establish basic protections for broadband customers. NetCompetition.org's Cleland called on the FCC to work with broadband providers to establish compromise rules that everyone could live with.
If the FCC "works on new broadband information service traffic-rules-of-the-road that comport with this decision, this effectively could settle into a de facto net neutrality peace given that the FCC's 'general authority to regulate' broadband would be unchallenged and the broadband industry's biggest fear, common carrier regulation of broadband, would be off the table," he said.
Tatel's decision gives the FCC broad leeway to create new rules, agreed Pantelis Michalopoulos, a Steptoe and Johnson lawyer who argued for the net neutrality rules at the appeals court on behalf of several digital rights groups. The agency "has wide room short of reclassification," he said.
It's important that the appeals court ruled that the FCC has jurisdiction over broadband and was reasonable in trying to create rules for broadband providers' treatment of traffic, he said. The agency could, for example, establish a basic level of guaranteed service for broadband customers, or define a reasonable level of service, he said.
"There is room for the FCC to make rules that comply with the direction of the court," he added.
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