Court Rules Against FCC in Comcastic Net Neutrality Decision
In the end, the federal appeals court reviewing the Federal Communications Commission’s sanctions against Comcast was as skeptical of the FCC’s authority to issue the sanctions as Comcast itself. This morning, the U.S. Court of Appeals for the District of Columbia ruled that the agency overstepped its bounds when it censured Comcast for interfering with peer-to-peer traffic on its network.
“It is true that ‘Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies,’” the three-judge panel wrote in its order (full text below). “It is also true that ‘[t]he Internet is such a technology,’ indeed, ‘arguably the most important innovation in communications in a generation.’
“Yet notwithstanding the ‘difficult regulatory problem of rapid technological change’ posed by the communications industry, ‘the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer…Commission authority.’ …The Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any ‘statutorily mandated responsibility.’”
In other words, as much as the FCC would like to tell Comcast (CMCSA) how to manage its network, it cannot do so without an explicit mandate from Congress.
This is a nasty blow to the FCC’s effort to establish a formal set of Net neutrality rules and to its National Broadband Plan. The FCC can’t really regulate broadband without clear authority over the companies that provide it.
That said, the FCC does have a few options going forward, as Bernstein Research analyst Craig Moffett explained in a research note to clients this morning.
“Broadly speaking, the FCC has three options. First, the FCC can go to Congress and request the necessary authority. Second, it can go to Congress and request net neutrality legislation. Or third, the FCC can reclassify broadband to bring it under FCC jurisdiction. This third option has been called by some ‘the nuclear option.’”
According to Andrew Jay Schwartzman, senior vice president and policy director for The Media Access Project, the nuclear option may be the best bet.
“While we are, to put it mildly, unhappy about this decision, the FCC’s choices are not quite as bleak as you suggest,” Schwartzman told me. “It has the option of classifying broadband as a Title II service, which was what it did until 2005. While this, too, will be subjected to the inevitable court appeals, many of us think that this will be sustained, and we’ve asked the FCC to do this. This is especially important as legislation would take a very long time to be enacted.”