FCC must draft new rules or rely upon the intervention of lawmakers if it’s to control Internet broadband service providers.

Verizon won a partial victory in its appeal of the Federal Communications Commission’s Open Internet Order. On Tuesday the usa Court of Appeals for the D.C. Circuit rejected Verizon’s claim that the FCC lacks jurisdiction over broadband providers, but in addition rejected the FCC’s try to regulate the corporate under common carrier rules.

The ruling means that network neutrality can’t be enforced without further legislative intervention. The FCC’s rules attempted to make sure network neutrality by requiring high-speed Internet service providers to regard all Internet traffic equally. Without such rules, a network provider could, in theory, delay streaming video traffic unless a fee is paid or favor data traffic from selected partners.

Verizon celebrated the court’s ruling, characterizing the FCC’s rules as an impediment to its ability to supply innovative new services to customers. Asserting that the ruling won’t change consumers’ ability to access the net — but saying nothing concerning the pricing of such access or how online businesses may be affected — the corporate stated, “The court’s decision will allow extra space for innovation, and consumers could have more choices to figure out for themselves how they access and experience the web.”

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The problem with the FCC’s approach is that it attempted to use the typical carrier rules used to adjust phone companies to broadband service providers. The court said the FCC had elected to exempt broadband providers from common carrier rules and thus the commission couldn’t treat them as common carriers under the Communications Act.

FCC chairperson Tom Wheeler in a press release said the ruling affirmed the commission’s right to control broadband services and reiterated his interest in maintaining the net as a free and open platform. “i’m committed to maintaining our networks as engines for economic growth, test beds for innovative services, and channels for all different types of speech protected by the primary Amendment,” he said, noting that the commission might yet appeal the ruling.

Craig Aaron, president and CEO of Free Press, a web policy advocacy group, expressed disappointment with the ruling in an announcement. “[The court’s] ruling implies that Internet users shall be pitted against the most important phone and cable companies — and within the absence of any oversight, these companies can now block and discriminate against their customers’ communications at will,” he said.

George Foote, a partner at law firm Dorsey & Whitney, acknowledged the opportunity of discriminatory pricing, but stressed that telecom companies can’t accomplish that with impunity. “Everybody is watching,” he said. “Anybody who does attempt to step up and push the boundary is probably going to stand Internet shaming and to give the commission with the ammunition to come back in with new rules that treat providers like utilities.”

The Internet cannot be regulated under rules developed for a telephone monopoly, Foote said, adding that the court’s ruling represents a chance to develop more functional legislation. He doubts the FCC will appeal. “i believe Tom Wheeler is simply too creative for that,” he said. “I expect the FCC to come back up with a brand new approach altogether, though I actually have no idea what with a purpose to be.”

Foote also observed that both the home and Senate might try to revise the Communications Act. “This entire issue goes to be front and center for your time,” he said.

It’s ironic, Foote added, that the D.C. Circuit Court has ended up using common carrier principles, hailing from the age of steam engines, to force lawmakers to confront the long run.

Thomas Claburn is editor-at-large for InformationWeek. He have been writing about business and technology since 1996 for publications akin to New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. He’s the writer of a science fiction novel, Reflecting Fires, and his mobile game Blocfall Free is out there for iOS, Android, and Kindle Fire.

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