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A huge win on net neutrality could embolden the FCC to tighten regulations in other areas

Tougher privacy rules have already been proposed, while some would like to see action taken against so-called zero rating, too.

FCC Chairman Tom Wheeler speaking at the 2016 Common Sense Media Awards
FCC Chairman Tom Wheeler
Matthew Eisman / Getty Images for Common Sense Media

Net neutrality advocates are hoping that a big win in court will prompt the Federal Communications Commission to take bold action in other areas, including privacy.

Earlier this week, a federal appeals court upheld the agency's right to regulate both wired and wireless broadband in the same way as other telecommunications services, using Title II of the 1934 Communications act. While likely to be appealed to the Supreme Court, some see the appellate ruling as enough approval to inspire more aggressive action by the FCC.

"By affirming the FCC’s rules and their use of Title II, the court set the stage for strong privacy protections,” Fight for the Future’s Holmes Wilson told Recode.

In March, FCC chairman Tom Wheeler surprised many with plans to require internet service providers to get consent from customers before using many types of data. The agency is now sifting through an initial wave of comments, with a deadline looming later this month for responses to those comments.

Another area where the FCC may take action is around so-called zero rating, where carriers choose to exempt one service or a class of service from counting against a user’s data cap.

AT&T and Verizon both have sponsored data programs where the provider of content or a third party pays for data traffic, while T-Mobile has a pair of programs that allow certain music or video streams to be delivered without counting against a user’s data cap.

“Comcast, AT&T, Verizon and T-Mobile are all violating the spirit of the net neutrality rules with zero-rating plans that privilege some sites over others,” Wilson said. "Now that the FCC clearly has the power to shut down these shady arrangements, the question is: Will they?"

Commission staff have already met with several companies, and sources say that an informal review is continuing.

The net neutrality rules don’t explicitly prohibit zero rating, with the commission basically holding that such plans can be good for consumers in the right circumstances. Instead, the FCC has been looking to oversee such plans on a case-by-case basis as part of its regulation of carriers’ “general conduct."

In November, Chairman Wheeler reiterated that the FCC planned to keep an eye on these plans as they evolved. At the same time, he pointed to T-Mobile’s Binge On, which exempts video services from data caps as long as customers accept lower-quality streams, as the kind of service that should be allowed to continue.

Verizon, meanwhile, has raised more red flags with its approach, which exempts only its own Go90 service, though the company says other video service providers are free to use its sponsored data program to make their services free to consumers if they so choose.

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