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

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 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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