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Think Tank Questions FCC's Network Neutrality Authority
By: Roy Mark
2009-08-10
Article Rating:    / 2
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In a filing supporting Comcast's appeal of the FCC ruling that Comcast violated the agency's network neutrality principles by throttling peer-to-peer traffic from BitTorrent, the Progress & Freedom Foundation contends the principles are not legally enforceable.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.
"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 itselfof looking for hints of authority scattered through
the Actshould 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 predictablethe 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.
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