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Comcast vs FCC: Federal Court Questions FCC's Ability to Regulate Broadband

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Updated: A three-member panel of the U.S. Court of Appeals for the District of Columbia today ruled that the Federal Communications Commission didn’t have the authority to censure Comcast for throttling peer-to-peer packets, and also called into question the agency’s ability to regulate broadband as a service. The move not only undercuts the FCC’s Comcast decision, but is a huge blow to the agency’s efforts to regulate network neutrality.

However, for those worried that the FCC’s loss means Comcast will start throttling again, a spokeswoman says the cable provider plans to keep its existing network management plan, which slows speeds for heavy users only during times of congestion. The FCC has not yet responded to my request for comment, and notably could appeal this decision to the entire court of appeals or even to the U.S. Supreme Court. Update: The FCC issued its comment saying that while the court closed one door to net neutrality, the FCC won’t drop the issue and its broadband policies. However the agency said, “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.”

Comcast (s cmsca) filed its appeal of the original FCC ruling in August, calling into question the FCC’s ability to force it to follow the so-called “broadband principals” that governed net neutrality at the time without ever having established a rulemaking proceeding for them. It also called into question the FCC’s ability to regulate broadband under a broader clause in the 1934 law that resulted in the agency’s creation. A month later, the FCC formally began a rulemaking process for net neutrality (the final round of comments on the issue are due this week), and it of course argued that it did have the ability to regulate broadband.

However, this ruling could mean that the FCC’s efforts on net neutrality and perhaps other broadband regulations such as privacy efforts or Universal Service Fund reform will need more Congressional help. If it can’t regulate broadband under its original authority, then Congress would have to act to give it that authority. For a history of the issue, check out Susan Crawford’s post on the topic. It boils down to the difference between providing transport or an information service. Back in the day the FCC said the phone companies were clearly transport companies, while the cable providers were information services.

That decision is now coming back to haunt the agency — and may, in the process, haunt all those companies in favor of net neutrality. After all, there are plenty of members of Congress who aren’t too excited about net neutrality.

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17 Responses to “Comcast vs FCC: Federal Court Questions FCC's Ability to Regulate Broadband”

  1. I personally agree with the DC court. I believe less FCC regulation of Internet service providers is a good thing. Newer and faster technology advances will increasingly provide more consumer options for obtaining high speed Internet access. Informed consumers and free market competition will force broadband ISP’s to offer better services for competitive prices least they lose the customer to the competition that does.

  2. This may be up to the states. Unfortunately in most markets, broadband is provided by a duopoly: the phone and cable companies. To get a good price customers all almost always required to purchase an expensive package of services. Because these providers rely on the margins and fees generated by these packages, they have little incentive to provide high speed bandwidth at competitive prices.

    Unless a way can be found the break up the duopoly and create a truly competitive marketplace, it may be up to states to regulate broadband as a any other utility.

  3. Michael C

    Congressional Conservatives agree with Net Neutrality……when only given the definition.

    Rep. Mike Rogers (R-MI) chastised Genechowski in a House subcommittee hearing, and asked him how on Earth the FCC had the authority to “regulate the Internet.” See, Mr. Rogers is confused about Net Neutrality. He thinks it’s all about the FCC regulating content on the Net and picking winners and losers, which is precisely what Net Neutrality prevents ISPs AND government from doing. At 2:47:00 a confused Rep. Rogers agrees with Net Neutrality when presented it’s definition by Genechowski…

    The biggest threat to Net Neutrality is allowing continued mis-information about it to spread. It’s not a socialist takeover of the Internet as the lobbyist FUD would have you believe.

    Ask yourself this, “If I were on a phone call with a close friend, and either AT&T or the FCC were listening in on the call without either of us knowing, would I be OK with them a) listening in on the call in the first place and b) garbling or disconnecting my call if they didn’t like what they heard?” Of course you wouldn’t be OK with this. You’d feel your right to privacy had been violated. So why on Earth then would it be OK to allow either an ISP or the government to do that with your data as well? This is precisely what Net Neutrality is designed to protect…your right to data privacy.

  4. Hats off to Comcast for putting the FCC in its place. Faced with a soft slap on the wrist from the FCC, Comcast still took ‘em to court to prove they lacked even that authority.

    If only more businesses had the gumption to stand up to Federal overreach (in a variety of markets).