The D.C. Circuit Court’s decision, while obviously correct, will not slake the thirst of anyone looking for intellectual arguments for or against the FCC’s proposed regulation of the ISPs’ network-management practices. Because the court ruled that the FCC lacked the "ancillary" authority it asserted, the body of the decision amounts to little more than a refutation of the respondents’ argument that earlier Supreme Court decisions provided precedent for the FCC’s claims.
The "legalistic" nature of this decision aside, there is something important here. It is widely surmised (and feared) that, thus rebuffed, the FCC will attempt to get to its desired result – network neutrality, as it’s called – by attempting to regulate ISPs, like phone companies, under Title II of the Communications Act.
But look what’s happening here. On the basis of claims of abuse so slim they’re very nearly invisible, the FCC has proposed to expand and codify that agency’s "Internet principles" in a way that guarantees its regulatory oversight of the freest, most democratic, and fastest-growing communications medium in the country. And for what? Because of fears that Internet providers might look for ways to insulate everybody else from the negative consequences of the actions of a relative handful of bandwidth hogs?
One of the intervenors in this case – Free Press, whose sole reason for being is the subjugation of the commercial media and communications companies to the yoke of government – coined the phrase "Net Neutrality: The First Amendment of the Internet." The reality, as someone put it, is that codified net neutrality is more nearly "The Fairness Doctrine of the Internet."
For now, nobody knows for sure what will happen next – whether the FCC, or Congress, will push ahead in the conviction that this too is an issue of such "transformative" importance the only thing that matters is getting it done. But in this, as in so many things, the wiser course would be to rethink the matter entirely. It rarely happens that government acts more efficiently than the marketplace, and net neutrality is almost certainly no exception to that rule.