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Court Says FCC Can Kill Net Neutrality 

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It’s been a hard week for net neutrality supporters, as the Trump Federal Communication Commission’s decision to strip neutrality rules from the internet was upheld by the Court of Appeals for the DC Circuit.

It was a fairly narrow win for the FCC, as the court said it was required to defer to the agency’s judgment, and bound by the precedent set in a controversial 2005 case called NCTA v. Brand X (or just Brand X for short). And the court said the FCC cannot block states like California from writing their own net neutrality laws, so that’s where the fight moves next.

But what really and truly stands out about the DC Circuit’s decision in this case: net neutrality at the federal level has turned into a legal quagmire with almost no relationship to the real issues regular people face in the market for internet access.

The heart of the net neutrality policy debate is incredibly simple and easy for almost anyone to understand: do you think internet providers should have the power to block, throttle, or otherwise interfere with internet traffic outside of normal network management? Most people don’t think so — the polls say net neutrality is a popular idea with Americans across party lines.

But because the fight has been going on for so long, and the rules have been imposed and taken away so many times under different legal theories, the actual court case and legal issues are a million miles away from the very simple policy question.

Instead, the legal side of net neutrality has become an exercise in lawyers making fine-grained arguments about whether washing machines can make phone calls, whether consumers with a single broadband provider still experience the benefits of competition, and whether or not federal regulations can override state law if the federal regulations don’t actually exist. “Is it good if AT&T can throttle Fox News while streaming CNN for free” never actually comes up, even though that is the fundamental policy question. It’s deeply frustrating.

But it’s also revealing, because it makes it abundantly clear that net neutrality needs to get away from lawyers and judges and be written into the actual law. And since the court ruled that individual states could pass their own net neutrality laws, it seems like that’s exactly what’s going to happen.

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