FCC Loses Again, and It's Their Own Damned Fault

In a move that surprised approximately nobody, the CAFC has ruled that the FCC lacks authority to regulate "information services" as "utilities." That's unsurprising because about 10 years ago the FCC decided to classify ISPs as information services.

The classification was designed to exempt then-nascent ISPs from the level of regulation that big broadcasters had to follow. Now it's a decade later and there are effectively no differences between the major ISPs and broadcasters - often they're owned by the same parents. But the FCC's regulations are still on the book, and while the court held that the FCC does have the authority to regulate utilities it can't both exempt the ISPs and also try to regulate them.

The obvious solution is to reclassify ISPs properly and continue to work toward providing a level playing field. But that would take some political courage in the face of heavy industry lobbying and howls from Congressional sock-puppets. So I'm not hopeful. The FCC might also appeal this decision but it's going to lose again if it does so.