Ruling rolls back FCC's net-neutrality guidelines

Appeals court rules that agency does not have authority to regulate providers' network management practices

A federal appeals court today overturned a Federal Communications Commission order against Comcast, ruling that the commission does not have the authority to regulate network management practices of Internet service providers.

The ruling by the D.C. Circuit Appeals Court has little practical impact on Comcast, which already had stopped the practice of choking off peer-to-peer traffic of subscribers, but is widely seen as a blow against the FCC policy of network neutrality. Without the authority to regulate network management, the commission is left, for the time being at least, without a tool for requiring that carriers treat all traffic equally.

Supporters of net neutrality say the policy ensures that carriers, who increasingly also are content providers, do not discriminate against competitors by blocking access to their content.

Related story:

FCC releases proposed rules on network neutrality

Industry groups, which opposed the policy as a threat to technological innovation, are pleased with the decision.

“The D.C. Circuit's ruling reaffirms the primacy of the rule of law and the legislative authority of Congress to determine whether and how our nation's communications networks are to be regulated,” said Barbara Esbin, senior fellow at The Progress & Freedom Foundation.

The court ruled on the issue of the FCC’s jurisdiction, not on the policy of net neutrality. The commission acknowledged that it had no express statutory authority, but relied on a catch-all provision of the Communications Act giving it authority to make rules and regulations necessary to carry out its duties.

“The Commission may exercise this ‘ancillary’ authority only if it demonstrates that its action — here barring Comcast from interfering with its customers’ use of peer-to-peer networking applications — is ‘reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities’,” the court wrote in its decision. “The Commission has failed to make that showing.”

Courts have recognized the commission’s authority to impose some regulation on Internet service providers, but that does not confer blanket authority.

The case stemmed from a 2007 complaint filed against Comcast with the FCC by Free Press and Public Knowledge after it became known that Comcast was throttling back subscribers’ traffic from some peer-to-peer applications. Comcast asserted that it was a reasonable way to manage traffic on its networks, but opponents of the practice saw it as a way to restrict consumers’ access to competing content and services.

The FCC ruled that Comcast had violated an FCC policy adopted in 2005 declaring that consumers are entitled to:

  • Access the lawful Internet content of their choice.
  • Run applications and services of their choice, subject to the needs of law enforcement.
  • Connect their choice of legal devices to the network.
  • Benefit from competition among network, application, service and content providers.

“All of these principles are subject to reasonable network management,” the policy statement said.

But the policy has not been adopted as a formal rule, and that was one of the grounds on which Comcast challenged the decision.

“It is true that 'Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies’,” the court’s decision concluded, citing language from arguments. “It is also true that 'the Internet is such a technology,’ indeed, ‘arguably the most important innovation in communications in a generation.’” But that does not give the commission “untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority.”

The FCC voted unanimously in October, with some dissent from Republican commissioners, to authorize a notice of proposed rulemaking on net neutrality that would formalize the 2005 policy statement.

“Today’s court decision invalidated the prior commission’s approach to preserving an open Internet," FCC spokesperson Jen Howard said Tuesday in response to the decision. "But the court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end."

She said the FCC would not abandon the principles of net neutrality. "The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies -- all of which will be designed to foster innovation and investment while protecting and empowering consumers -- on a solid legal foundation."

About the Author

William Jackson is a Maryland-based freelance writer.

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Reader Comments

Wed, Apr 7, 2010

There needs to be a reasonable middle ground here. Let's not forget all of the billions of dollars worth of hardware in the back room - that stuff isn't free. In other words, it is not reasonable to expect anybody to provide infinite bandwith for a finite price. It is somewhat opposite of what some people seem to think - with pure neutrality the customers end up being charged for overall bandwidth which can drive the price up due to those users that use an excessive amount of bandwidth. A little understanding of the pricing models involved in providing services (as well as free enterprise and capitalism in general) would go a long way toward a better end result for everyone. The result should be based on logic not agendas driven by bad philosophy.

Wed, Apr 7, 2010 theo

The last thing the internet needs is the heavy hand of needless regulation. Thank God for the court. As the article points out, Comcast stopped throttling p2p, but not because of the FCC. If the ISPs want to charge by the gigabyte, why shouldn't they?

Wed, Apr 7, 2010 Net 4 All

This is a nightmare - without Net Neutrality, ISP's will start selling portions as 'premium services'. Want Streaming Video? pay extra, or that traffic will be blocked. How about Voice over IP? Pay extra for that to be unfiltered too. Like the cell phone carriers that want to charge you for each 'data' service - like email, video, text messaging, the ISP's will jump on the bandwagon too. Definitely setting the stage for the beginning of the end for innovation on the Internet but a very bright future for tightly controlled internet run by big business and hollywood. We need Net Neutrality to maintain an unbiased and open nework to continue the development of new and innovating products - both big and small.

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