As reported by the Associated Press, the U.S. Court of Appeals in the District of Columbia has ruled against the Federal Communication Commission (FCC) failed to show it had the Title 1 authority under the Communications Act of 1934 to tell Comcast what to do to enforce network neutrality rules over broadband Internet providers. The ruling is a significant victory for Comcast Corporation, which had been involved in a dispute with the FCC over network filtering of P2P filesharing software after its customers complained that the cable giant was interfering with P2P apps.
“The commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any statutorily mandated responsibility,” stated a three-judge panel of the DC U.S. Court of Appeals.”
The FCC made the following statement:
“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.
“Today’s court decision invalidated the prior Commission’s approach to preserving an open Internet. 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.”
Today’s decision followed a January hearing where the federal court judges showed skepticism of the FCC’s authority to require broadband Internet providers to give equal treatment to packets as they moved over telecom networks. As Karl Bode writes at DSLreports, before Comcast’s win over the FCC:
Again, no FCC fine was levied, no new rules were imposed, and Comcast barely saw a wrist slap for lying to consumers and the press multiple times, in both filings and in print, about throttling all customer traffic, 24/7 using user packet forgery.
Comcast ultimately shifted to a clear 250 GB monthly cap and a more intelligent and less blunt force method of targeting network congestion. Still, Comcast never much liked the precedent the FCC’s actions set, so Comcast lawyers have spent the last few years trying to argue that the FCC never had the authority to dictate how Comcast manages its network. The FCC found themselves on uncertain legal footing because the rather flimsy network neutrality principles (pdf) created by previous FCC administrations were painfully vague.
The decision creates a roadblock in the FCC’s path towards moving forward with elements of its national broadband plan. The decision might mean, for instance, the FCC lacks the necessary powers it requires to shift spectrum from TV companies to wireless providers.
As a result of the ruling, Comcast and other broadband service providers may reasonably be expected to filter P2P filesharing again. As Cecilia Kang reports at the Washington Post the FCC’s loss in the court “comes just days before the agency accepts final comments on a separate open Internet regulatory effort this Thursday. And the agency will be faced with a steep legal challenge going forward as it attempts to convert itself from a broadcast- and phone-era agency into one that draws new rules for the Internet era.”
The full text of the Comcast vs FCC ruling is embedded below. As comment from the FCC and Comcast becomes available, I’ll post it here.
digiphile 
Great article, Alex. I wanted to comment on the heart of the ruling, which is that cable ISPs (and FIOS, essentially any broadband provider) are scheduled (loosely) under Title I of the Telecom Act, since the Powell-era Cable Modem Order, as information services instead of communication services.
The Supreme Court ruled that classification as within the scope of the FCC’s powers (however strange it might seem in the light of the intent of the law) in BrandX v FCC, and this decision today upholds that classification. Technically, this is a very sound legal decision, which is probably why it was unanimous.
If the FCC had classified ISPs as common carriers under Title II, the same lawsuit would have be 3-0 the other way. That is the only option the FCC has for exerting regulatory authority of this type over broadband providers.
Will that happen? It’s unclear. Genachowski isn’t averse to that, philosophically, one supposes, but it would be an epic sh*tstorm.
To sum up, the FCC clearly has the tools it needs to order broadband providers to be treated like common carriers and if anything, these decisions show that the courts are very consistent in upholding that authority. It simply has not done so.
Pingback: The Technoverse | Ancilliary Authority, Estoffel Gotchas, and |