We disagree on what Congress gave the FCC authority to do. The 1996 Telecom Act clearly classified DSL and dial-up as something called a "telecommunications service" which was subject to a host of rules including nondiscrimination rules. On the other hand, things like Yahoo.com would be "information services," not subject to all those rules.

The FCC, adhering to a deregulatory philosophy, decided not to regulate cable modem service by claiming it was an "information service" through some pretty silly technical analysis. After this decision, the FCC decided that DSL and wireless Internet were also "information services" not automatically subject to the rules set out by Congress. (This is sort of like a financial regulator deciding that mortgage-backed securities are not insurance, even though they look like insurance, just to make sure all the laws applicable to insurance don't apply.)

But... the FCC claimed it could impose net neutrality rules on ISPs even though they were "information services" like Yahoo (or Hacker New or Facebook). A court struck down that attempt and the FCC is on try number 2, and before the same court.

The FCC can properly classify ISP service as a "telecommunications service."

The argument about Congress failing to pass a new statute authorizing net neutrality in 2006 is flawed because courts draw no inference from failed legislation. That's well-known statutory interpretation. Any member could introduce any law and it likely won't get passed; that 1 member's view doesn't have a legal impact.

Finally, the argument that Ed Markey can act whenever there's a NN violation misses the point that the FCC is the enforcement agency that should act. By adopting a law, they are simply setting up that enforcement process for people to file complaints, and the FCC can act. Markey on his own can't enforce anything; he can call hearings, but that's not enforcing an order.

(Also, the commenter is Declan McCulloch of CNET, or his biggest fan, since he links to Declan's articles and is named Declan... I'm Marvin, the author of the Wired.com opinion article. Declan is also quite a "smart fellow" and we get along swell, even if we disagree sometimes and are on opposite coasts.)

This is just nitpicking and doesn't alter your argument.

Also I have links to my homepage and Twitter screen name in my HN profile: https://news.ycombinator.com/user?id=declan

In terms of the merit of your arguments, nobody claimed that Markey can do anything on his own; the point I made is that if there are actual NN problems -- as opposed to hypothesized handwaving ones -- Markey and others in Congress can and will advance legislation. In terms of the rest of your points, I think you're reaching. I look forward to continuing this conversation after the court rules!

PS: My last name is spelled "McCullagh."

Congress has already authorized it, the FCC is just trying to have its cake and eat it too. The FCC decides whether to classify last mile internet service as a "telecommunications service" that they have significant statutory authority over or an "information service" that they don't, and they picked the second one but are trying to impose regulations anyway, which is why they keep getting slapped down.

Choosing that classification was so controversial at the time that they got sued over it, and the Supreme Court ultimately said that the FCC was allowed to make that classification, not that they were required to. Now that everything that was once classified as a "telecommunications service" is being offered instead over the top using "internet service" it seems reasonable for them to revisit the classification.

B) You are presupposing that all members of Congress act rationally and have an expert knowledge of the existing state of the law.

"That'll be $60 for the gas. Oh wait -- where are you going with that gas? Boston? No problem. That's $40 extra if you want to go more than 25 miles an hour."