It's almost a cliche that even if an appeals court appears to ask tough
questions about an issue, it rarely translates over to a decision. Such was not
the case Jan. 8 when the U.S. Court of Appeals heard Comcast's appeal of the
2008 Federal Communications Commission ruling that the cable broadband provider
violated the agency's network neutrality principles.
At the hearing, judges repeatedly pressed FCC attorneys on where the agency
drew its authority to enforce the network neutrality principles from, and when
the court issued its opinion April 6, ruling on Comcast's side, the question was
still the same.
The court ruled that the FCC did not have the authority to order Comcast to
cease and desist throttling of BitTorrent traffic in 2008. The three-judge
panel said, "Because the FCC 'has failed to tie its assertion' of
regulatory authority to an actual law enacted by Congress, the agency does not
have the power to regulate an Internet provider's network management
practices," Cnet reported.
Congress has repeatedly declined to give the FCC the authority to enforce its
network neutrality principles.
"We must decide whether the Federal Communications Commission has
authority to regulate an Internet service provider's network management
practices," Judge David Tatel wrote in his 36-page opinion. "The
Commission may exercise this 'ancillary' authority only if it demonstrates that
its action—here barring Comcast from interfering with its customers' use of peer-to-peer networking applications—is 'reasonably
ancillary to the ... effective performance of its statutorily mandated
responsibilities.'"
For the FCC, the ruling was a setback after years of pushing for network
neutrality. FCC spokesperson Jen Howard issued an April 6 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."
In 2005, the then Republican-led FCC voted for four network neutrality
principles: "(1) consumers are entitled to access the lawful Internet content
of their choice; (2) consumers are entitled to run applications and services of
their choice, subject to the needs of law enforcement; (3) consumers are
entitled to connect their choice of legal devices that do not harm the network;
and (4) consumers are entitled to competition among network providers,
application and service providers, and content providers."
At the time of the 2005 vote, commissioners warned that these principles could
be challenged in court, since the FCC had not held any hearings on them. After
the FCC enforced the principles against Comcast in 2008 for throttling
BitTorrent content, the cable company did, indeed, sue the FCC, contending that
the principles have no legal basis.
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