The Federal Communications Commission once again came up short in its attempt to regulate broadband Internet service providers, with a divided panel of federal appellate judges striking down the agency’s net neutrality rules for the second time.

The U.S. Court of Appeals for the D.C. Circuit on Tuesday gave the FCC one important victory, establishing for the first time that the agency has the authority to issue rules governing broadband providers. But the agency’s Open Internet Order was improper, the court found, because it treats broadband providers as common carriers, like telephone companies.