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Editorial: Congress’ Call

Nobody ever got rich trying to predict which way appeals court judges rule. Though last time around, most folks, including this page, had a pretty good idea the FCC was going to get its network neutrality rules sent back for more work. It may happen again.

Two weeks ago the same court, presided over by the same judge who wrote the opinion in the first case, heard challenges to the FCC’s revised rules, notably its decision to reclassify ISPs as common carriers under Title II. It is a little tougher to tell this time around, but there were signs that the judges still had concerns about the FCC’s approach.

If you view the rules as the FCC compelling speech—the FCC says no, some ISPs and others say yes—then the agency needs to look for the least restrictive means of regulating that speech.

Two of the three judges focused in on the issue of “less restrictive” means to the commission’s end of an open Internet, which everybody seems to agree, on both sides, is a good thing.

If the oral argument in the case is any indication, the FCC may have to revisit at least some of its second Open Internet order due to those issues.

If so, the legal process could drag on.

That’s why the better option is for Congress to get off its duff and come up with a bipartisan compromise clarifying that the FCC has authority to preserve an open Internet, but without having to impose telephone-style legacy regs.