Tuesday's court ruling, which found that the Federal Communications Commission does not have jurisdiction over how internet providers regulate their service, has sent the FCC's national broadband plan back to the drawing board.

The plan, which was released last month, sought to provide broadband access to more of the country at better rates. Some of my criticisms of the plan around the time of its release were that it did not go far enough in ensuring wider access and that it risked hurting niche media outlets already threatened by larger competitors. Despite these flaws, the plan was one of the greatest opportunities to remedy the unequal distribution of information services that continues to exclude historically marginalized groups from the digital revolution. In an effort to appease lawmakers and the industry, however, the FCC's recommendations for combating the digital divide used language that made it seem their proposals were "optional."

Apparently, Comcast didn't want to go along with the FCC's option. Instead, they took the issue to a federal appeals court, which found that under current law, the agency cannot stop service providers from blocking sites. According to the court, broadband companies can decide to withhold content and services and also charge however much for those services they want. As The Economist's Democracy in America blog points out, this "rent-seeking behavior" could consolidate power in the hands of the providers and the bigger sites that can afford to pay for special services (and Comcast loves consolidation).

More importantly, the court's decision throws the FCC's entire plan into question, as the agency may no longer have the legal reach to implement its recommendations. As Computerworld's Grant Gross outlines, there are a number of ways forward for the FCC in implementing their plan for net neutrality, and one of these ways would be to redefine the place of broadband in the spectrum of telecommunications services. In light of Tuesday's ruling, we desperately need to update the laws so that they reflect the reality of the digital age: that broadband providers are telecommunications providers and should be regulated as such. According to the Wall Street Journal, "For broadband providers, the worst outcome would be if the FCC decided to classify broadband networks as common carriers under Title 2 of the Communications Act, which allows the federal government to control pricing and access as it does with landline telephone service." In order to make the broadband companies provide internet service at fair rates to less lucrative markets, "the FCC would essentially have to say it made a mistake when it deregulated Internet lines in 2002." It certainly did.


Image courtesy of Wikimedia Commons, user Jonathunder.