The Law and Politics of Net Neutrality: Part 2 by Jeff Kao

In the previous post, I wrote about the recent history of net neutrality, the Open Internet Rules in the works, and the ensuing backroom dealings and legislative battles. But now that the mid-term elections are over, has the future of net neutrality rules changed, and is net neutrality dead?Republicans made gains in the Senate and took control of the House, but does the change in legislative politics impact the regulatory process (and the profit outlook for any company that does business over the Internet)? To have a shot at predicting the regulatory and legislative action over the next two years — an eternity in Internet time — we must examine the legal force of the rules being considered.Even though the Comcast BitTorrent decision was a blow to the agency’s regulatory position, Comcast Corp. v. FCC, 600 F.3d 642 (2010), an analysis of the legal framework that underlies it shows that not all (jurisdiction) was lost for the FCC. To properly understand the FCC’s current regulatory position, we have to go back beyond the April 2010 Comcast BitTorrent decision by the D.C. Circuit.

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