In September 2009, the FCC proposed new rules for net neutrality, requiring internet service providers to treat all content equally and not put any site at a disadvantage by slowing transmission speed or access. A recent decision in Comcast Corp v Federal Communications Commission sent the FCC back several steps, finding that that FCC, as an administrative agency, does not have the power to regulate internet service providers in this manner, as it is outside the scope of the specific powers delegated by Congress.
The dispute started with allegations that Comcast deliberately slowed access to the Bit Torrent peer-to-peer site. Comcast replied that its actions were necessary to manage the level of traffic and protect against slowdowns for other customers during peak times but the FCC issued sanctions in 2008 ordering Comcast to halt any slowdowns. Eventually, Comcast agreed to change its practices, but requested a review by the appeals court as to whether the FCC had the authority to sanction Comcast under its scope of power. The U.S. Court of Appeals for the D.C. Circuit agreed with Comcast that the FCC lacked such authority and vacated the prior sanctions.
This ruling was not a ruling against the principles of net neutrality, rather, it is solely a finding that the FCC does not have "any statutorily mandated responsibility" to enforce net neutrality by service providers, according to the opinion by Judge David Tatel. The FCC has replied that it remains committed to the principles of unimpeded access, and will continue with efforts to create such rules, however, it remains to be seen whether the FCC will pursue further appeal in order to do so, or whether it will turn to Congress to revise the FCC's grant of authority. With the FCC spokeswoman Jen Howard's statement that the FCC must ensure any future agenda rests on "solid legal foundation," and a statement by Democratic FCC commissioner Michael J. Copps, that "[i]t is time we stop doing the ‘ancillary authority' dance and instead rely on the statute Congress gave us to stand on solid legal ground in safeguarding the benefits of the Internet for American consumers," it seems that a revision of the FCC's grant of authority would be the more concrete approach, rather than further pursuit in the court system.
This recent decision may have been focused solely on the issues of the FCC's authority in enforcing net neutrality, but it also places the FCC's recently announced plans for improved infrastructure to increase access to the internet into question. If the FCC has no power to regulate service providers' management of their networks, then the FCC may also have no power to oversee any improvement of the existing broadband infrastructure.
Vol. 53, June 2010