The FCC lacked "any statutorily mandated responsibility" to enforce network neutrality rules, wrote Judge David Tatel.
As I wrote before, I didn't understand how the FCC had this authority:
Part of my curiosity is exactly how the FCC has the jurisdiction to do this. The last I heard, network neutrality was voted down in Congress. Did it come up again with no one noticing, or is the FCC just reaching again?
I want a neutral network, but I don't see much our governments can do to help. I'm glad to hear that at the very least, the FCC must await enabling legislation to do any of this nonsense. It means that U.S. agencies are still to some degree bound by law.
It's a good thing in this case, too. The FCC wanted to prevent Comcast from throttling traffic. How is this really going to work out profitably in the long run?
The problem is that plenty of throttling is not just acceptable, but a good idea. Eliminate the bad throttling, and lots of good will be thrown out, too. The clearest example is that the diagnostic packets used by ping and traceroute should surely be prioritized higher than packets carrying regular data. Another is that streaming video should likely get down prioritized so that it doesn't hog the whole pipe. Another is that any individual node that is spamming would be good to get throttled down. Another is that a large network might have some parts of its network better connected than others; to prevent the low-bandwidth areas from being clogged, they might want to throttle incoming data into the well-connected parts. There are really quite a lot of legitimate uses for throttling.
Those examples are all compelling and ordinary, but it gets worse when we consider possible future business models. For example, suppose an ISP of the future openly advertises that it prefers some traffic over others, e.g. that it allocates sufficient bandwidth for VOIP that there are never any glitches in a conversation held over their network. Such a company could provide a great service to the general public, but good luck getting it past an FCC that categorically disallows any form of throttling. Regulatory agencies tend to clamp down an industry to work the way it currently works; new ways of doing things can't get off the ground.
Again, though, I'm all for trying to make a more neutral network. It's just that the U.S. government is so terrible with everything computer that its solutions are worse than the problems. If I desperately had to think of something for our governments to do, I'd suggest looking into last-mile issues: decouple Internet service from the service of physically hooking up at the last mile.
IP-level neutrality is not the biggest issue, though. It's already pretty good. A far bigger concern is the constant race between walled gardens and open systems. It doesn't matter if you can send data to any IP, but the only IP that matters is Apple's. The best cure for that is for customers to pay attention to lock-in.