An FCC spokeswoman said Apr. 6 that the commission still has
the power to promote an open Internet, and will use that power, but also
recognized that a D.C. court decision striking down a previous
commission's order in the BitTorrent case "invalidated the prior
Commission's approach to preserving an open Internet."
"The FCC is firmly committed to promoting an open
Internet and to policies that will bring the enormous benefits of broadband to
all Americans," said FCC spokeswoman Jen Howard in a statement.
"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."
That solid legal foundation may be reclassifying at
least some portion of Internet service as a Title II communications service subject
to mandatory access regulations, rather than the more lightly regulated
information service category the FCC put it in.
"Today's court decision invalidated the prior commission's
approach to preserving an open Internet," Howard conceded. "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."
The court did say that it was not ruling that the FCC had no
power over ISPs, but that it had not justified using ancillary
authority rather than directly delegated authority from Congress.