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Paul Werner is a partner in the firm’s Business Trial Practice Group and resident in the Washington, D.C. office.

On Tuesday, January 14, 2014, the United States Court of Appeals for the D.C. Circuit struck down the FCC’s latest effort to mandate “net neutrality”– or promote internet “openness” – under the auspices of implementing the Communications Act.  At issue in the case is the Commission’s Open Internet Order, which imposed disclosure, anti-blocking, and anti-discrimination requirements on broadband providers.  These requirements were intended to promote investment in broadband deployment by guarding against possible anti-competitive conduct limiting consumer access to internet edge services (e.g., Amazon).  The Court, in a decision written by Judge David S. Tatel, noted the narrowness of the Court’s inquiry—not to assess the wisdom of the FCC’s net neutrality regulations, but to determine whether the Commission had proven that the rules were within the scope of the Commission’s statutory grant of authority. With that in mind, the Court invalidated all but the first (and least intrusive) FCC requirement: disclosure of internet traffic management practices.
Continue Reading Twice Bitten But Not Shy, The FCC Is Handed The DC Circuit’s Prescription for Internet Regulation