Earlier this week, on April 6, the D.C. Circuit ruled that the FCC lacked the authority to regulate the Internet traffic management practices of Comcast and other ISPs. Fine with us. But we agree also with yesterday’s piece in The Economist that the Net needs something in the way of a regulatory framework–a ‘least intrusive’ version with clear rules–and that only Congress should construct it:
In the past decade, many European telecoms regulators forced unwilling incumbents to accept open-access policies: telecoms operators had to sell access to their network infrastructure to market entrants, to ensure healthy competition on speed and price.
As America’s cable companies rolled out broadband access, they argued, curiously, that a connection to the internet was not a telecommunications service, but an information service, and thus (under America’s arcane telecoms rules) not subject to open-access regulation.
In 2002 the FCC agreed, and in 2005 the Supreme Court upheld its authority to agree. Comcast, on that occasion, did not dispute the FCC’s authority.
The distinction between information and telecommunications is important. Comcast offers its