Think Tank Questions FCC's Network Neutrality Authority

The Federal Communications Commission lacks the legal authority to enforce its network neutrality principles approved in 2005, a Washington think tank said Aug. 10. The Progress & Freedom Foundation Aug. 10 filed a legal brief supporting Comcast's appeal of the 2008 FCC ruling that the cable giant violated those principles by throttling traffic from peer-to-peer provider BitTorrent.

The FCC also found that Comcast misled consumers by not properly disclosing its P2P traffic policy. In a three to two vote, the FCC ordered Comcast to stop blocking P2P traffic, disclose to the FCC the full extent of Comcast traffic policies and keep the public informed of its future network management plans.

Comcast contends that its practices were reasonable under FCC network management rules and that even if the FCC found Comcast in violation, the agency's network neutrality principles were based on an "ancillary" authority the FCC does not possess. Comcast filed its appeal in September 2008.

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"Congress has not in fact delegated to the FCC any express authority to regulate Internet services. If it had, there would be no need for the Commission to strain the principle of ancillary jurisdiction to support its order," the PFF said in a friend-of-court filing. (PDF) "And its assertion of ancillary jurisdiction is untenable, exceeding any previously recognized scope and boundaries."

The think tank further contended that the FCC's "expansive theory of its ancillary authority" would grant it "completely unlimited regulatory powers over information services." The PFF also claimed there is nothing in the Communications Act that delegates any express authority to the FCC to regulate Internet service. "If anything, its history indicates Congress's affirmative desire to keep such services unregulated," the filing said.

The FCC cited seven separate provisions of the Communications Act as supporting its claims of ancillary jurisdiction.

"The exercise itself—of looking for hints of authority scattered through the Act—should have convinced the commission that Congress did not actually delegate it authority to make law for Internet services," the filing stated. "Congress would have been clear had it intended to do so."

At the time the network neutrality principles were approved, even members of the FCC questioned the agency's legal authority in this area. "Policy statements do not establish rules nor are they enforceable documents," then-FCC Chairman Kevin Martin said. But he added, "Today's statement does reflect core beliefs that each member [of the FCC] holds regarding how broadband Internet access should function."

Comcast's network neutrality woes began in fall of 2007 when the Associated Press found Comcast was secretly blocking or throttling P2P traffic during peak network hours. Following the AP report, Free Press and Public Knowledge filed a complaint with the FCC, beginning the first test case of the FCC's authority to enforce its network neutrality principles.

After FCC ruled that Comcast violated the agency's network neutrality principles, Comcast Executive Vice President David L. Cohen said his company appealed the decision "to protect our legal rights and to challenge the basis on which the commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules."

Free Press Policy Director Ben Scott said the FCC acted well within its legal authority to protect an open Internet, either by adopting rules or acting on complaints.

"Comcast's appeal is predictable—the cable giant has a long history of appealing any decision it doesn't like," Ben Scott, Free Press' policy director, said in a statement. "Presented with an open-and-shut case that Comcast was secretly blocking Internet traffic, the FCC took action on behalf of Internet users everywhere. All the FCC required was for Comcast to disclose the details of its secret blocking and tell the FCC how it will end this harmful practice."

If the court eventually rules in Comcast's favor and strikes down the FCC's network neutrality principles, legislation is pending in Congress to make network neutrality the law of the land. The legislation would make it illegal for a broadband ISP to "block, interfere with, discriminate against, impair or degrade the ability of any person to use an Internet access service to access, use, send, post, receive or offer any lawful content, application or service through the Internet."

Reps. Ed Markey and Anna Eshoo introduced the Internet Freedom Preservation Act July 31 in the closing moments before lawmakers headed home for their August recess.