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"Here's the problem: Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality," Von Lohmann wrote. "In place of explicit congressional authority, the FCC decided to rely on its 'ancillary jurisdiction,' a catchall source of authority that amounts to 'we can regulate without waiting for Congress so long as the regulations are related to something else that Congress told us to do.'
Von Lohmann was careful to reassert the EFF's bona fides as "big supporters of net neutrality" -- but noted that such support was trumped by the institution's fear of a slippery slope.
The FCC's assertion of 'ancillary jurisdiction' over ISPs despite no direct mandate to regulate them "could translate into carte blanche authority for unelected bureaucrats to regulate the Internet long after [FCC] Chairman [Julius] Genachowski has moved on," he said.
So what's next? Breathless media headlines would have us believe that "net neutrality is dead." But that opinion of one court decision isn't even held by some opponents of the proposed policy.
The Court of Appeals ruling did not necessarily shut the door on a federal net neutrality policy but in much narrower terms simply stated that the FCC overstepped its bounds in trying to enforce such a policy without specific authority to do so.
For advocates, the path forward is clear. They say it's high time for President Obama and Congressional Democrats to put some actual skin in the game and pass net neutrality legislation, rather than trying to slough off enforcement responsibilities via agencies like the FCC.
And some of net neutrality's fiercest opponents, in the popular political parlance, appeared to "welcome that fight."