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Does the D.C. Court of Appeals' decision destroying net neutrality and letting Comcast choke off traffic to Web sites it doesn't like move filling the two vacancies on the court up the Obama administration's priority list?

By Ezra Klein  |  April 7, 2010; 1:30 PM ET
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I dont understand the point of nominations anymore, given that no matter who Obama chooses will be just endlessly filibustered or even more egregiously placed under an anonymous and indefinite hold.

Posted by: calvinav | April 7, 2010 1:39 PM | Report abuse

Substantively, the decision is inarguably the best result for society. I can't imagine why anyone would think that the heaviest users who monopolize shared bandwidth should not either pay their fair share or have their usage limited, particularly when their usage slows down access for others. Ezra's so invested in the "net neutrality" rubric that he's lost sight of the basic fairness issues.

But legally, it's not necessary to appoint new judges. The court simply found that Congtress had not given the FCC authority to regulate the Internet, which is unquestionably correct. But if one wants to reverse the decision, all it will take is for Congress to pass a statute granting that authority.

Posted by: tomtildrum | April 7, 2010 1:42 PM | Report abuse

This post is a joke. Read up on Judge Tatel, who authored the opinion, before posting such drivel.

Posted by: mjp8 | April 7, 2010 1:59 PM | Report abuse

I kind of doubt it. This isn't a case of hostility to net neutrality. The FCC just was sloppy (or rushed) in passing the rules and the DC Circuit told them to follow a more formal rulemaking procedure.

Posted by: jesmont | April 7, 2010 2:27 PM | Report abuse

I make no comment on the substance, but the single sentence of this post is really poorly constructed. Ezra, you can do much better.

Posted by: thehersch | April 7, 2010 2:29 PM | Report abuse

For a self-described "wonk" you certainly do have a juvenile attitude toward the law. Because you like net neutrality, and the opinion says the FCC lacks the authority to order net neutrality, you believe we should appoint judges who uphold the FCC. You write not a single word about the merits of the decision.

Why don't you go read the opinion and, based on your review, tell us why you would have found differently.

Posted by: ostap666 | April 7, 2010 2:30 PM | Report abuse

Agree with the other folks above -- you missed the mark here (it pains me as a long-time reader to note this). (1) Tatel's a Clinton appointee, founding director of the Chicago Lawyers' Committee for Civil Rights Under Law, etc. etc. No conservative hack is he. (2) The decision is a textbook administrative law decision, with almost nothing to do with net neutrality. (3) The effect is what should have happened in the first place: Congress needs to address this, not the FCC exercising non-delegated authority.

Posted by: chiesq | April 7, 2010 2:44 PM | Report abuse


I'm sympathetic to your point in the abstract. It makes sense to not let heavy downloaders degrade the internet speed everyone else is paying for.

That said, that's not really the issue here. I don't think anyone would care if Comcast charged heavy users more or degraded their service across the board.

The concern was that they discriminated against a specific product while publicly denying they were doing so. And the logic of the opinion would allow them to discriminate against their competitors (i.e., Hulu) or demand bribes from websites for full service.

Posted by: jesmont | April 7, 2010 2:47 PM | Report abuse

I think Comcast should be eager to establish internet service providers as a common carrier.

If they have authority to govern access based on content, then they should have responsibility for the content.

That means that if someone posts illicit content that violates copyright or constitutes criminal activity (e.g. child porn), that the carrier could be held liable for that content.

I'd think Comcast would very much like to protect itself from liability over content. That means becoming a common carrier like the phone company or the USPS.

To the point of @tomtildrum above, you can still charge more to heavier users. Just as the phone company and the USPS charge you more as you use their services more.

Posted by: billkarwin | April 7, 2010 2:57 PM | Report abuse

Love the loaded part of this question:

"letting Comcast choke off traffic to Web sites it doesn't like"

No bias here.

Here's a question: if you don't allow everyone off the street to enter your house on an equal basis, are you in fact "choking off traffic" to your house? Just wondering.

Posted by: ChrisDC3 | April 7, 2010 4:51 PM | Report abuse


Actually, it's more like Neighborhood Watch deciding who can and can't enter *your* house or brigands demanding a "toll" for anyone who wants to drive the roads you've already paid for.

Posted by: lol-lol | April 7, 2010 5:35 PM | Report abuse

For the record, Obama's official position is not that Comcast shouldn't be able to choke off content it doesn't like, but that it shouldn't be able to charge more for access to certain content.

That's a big difference--one that should have net neutrality supporters very concerned.

Posted by: bmull | April 7, 2010 7:39 PM | Report abuse

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