By Jim O’Neill
In a 3-0 decision, the U.S. Court of Appeals has ruled the Federal Communications Commission doesn’t have the authority to regulate broadband, overturning a 2008 commission ruling against Comcast for throttling P2P traffic. The ruling, which wasn’t expected for weeks, sets up a major hurdle for FCC Commissioner Julius Genachowski, who’s national broadband strategy will be forced to undergo a major reshaping, or will need to take a new route–through Congress. The FCC also could attempt to manage broadband as “common carrier,”potentially setting up a showdown with telco and cable companies.
The case revolves around an FCC decision in 2008 to censure Comcast after it throttled P2P services that used enormous amounts of bandwidth. Comcast, the nation’s largest cable company, challenged the FCC’s authority to decide how a company manages its network traffic.
The U.S. Court of Appeals for the District of Columbia ruled that “The Commission may exercise this ‘ancillary’ authority only if it demonstrates that its action is “reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities.” The Court, said the FCC, “relies principally on several Congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create “statutorily mandated responsibilities.” The Commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast’s network management practices. We therefore grant Comcast’s petition for review and vacate the challenged order.”
Parul P. Desai, Vice President of Media Access Project, called the ruling a disappointment, and vowed to continue working to get the FCC the “ability to protect the rights of Internet users.”
“Media Access Project continues to maintain that the Commission must have the authority to protect all Internet users against harmful and anti-competitive conduct by Internet service providers,” said Desai. “Because this case has turned into a lawyers’ debate over technical issues, it is easy to lose sight of its importance to freedom of speech and expression. ISP interference to lawful uses of the Internet must not be tolerated, and the Commission must have the power to adopt rules to prohibit such practices.”
Public Knowledge President Gigi B. Sohn agreed, saying the decision “means there are no protections in the law for consumers’ broadband services,” and called for Internet services to be brought under common carrier regulation.
“Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others,” she said. “If it chooses, the Commission can continue to roll the dice and let the courts decide each time it wants to try to put some consumer protections on a broadband service. … Some parts of the Communications Act, which prohibit unjust and unreasonable discrimination, could be applied here. The Commission would not have to impose a heavy regulatory burden on the telephone and cable companies, yet consumers could once again have the benefit of legal protections and the Broadband Plan could go forward. The American public deserves no less. We need to emphasize that no one is talking about regulating ‘the Internet.’ No one is talking about regulating search engines or Web sites. We are talking about re-applying policies to a telecommunications service that the FCC incorrectly abandoned. That is the most simple solution and it’s the correct one.”
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