FCC: Court Ruling Threatens National Broadband Plan
The Federal Communications Commission said April 28 in a blog
posting that the April 6 ruling by the U.S. Court of Appeals for the
District of Columbia Circuit throwing out the FCC's decision to
regulate Comcast's online management "may affect a significant number
of important [National Broadband] Plan recommendations."
The FCC released its National Broadband Plan three weeks ago. The plan
contains more than 200 recommendations for bringing high-speed service
to underserved individuals and communities, and using broadband to
promote American competitiveness, education, health care, public safety
and civic participation.
"Yesterday's decision may affect a significant number of important
plan recommendations," FCC General Counsel Austin Schlick wrote.
"Among them are recommendations aimed at accelerating broadband access
and adoption in rural America; connecting low-income Americans, Native
American communities and Americans with disabilities; supporting
robust use of broadband by small businesses to drive productivity,
growth and ongoing innovation; lowering barriers that hinder broadband
deployment; strengthening public safety communications; cyber-security;
consumer protection, including transparency and disclosure; and
consumer privacy. "
All of those key elements require the FCC's use of network neutrality
rules to keep the nation's broadband pipes open, including the ability
to dictate that broadband providers not favor their own content over
But the court ruled April 6 the FCC "has failed to tie its assertion"
of regulatory authority to any actual law enacted by Congress, the
agency does not have the authority to regulate an Internet provider's
network management practices. Congress had repeatedly decline 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.'"
Schlick added in the post, "Does the FCC still have a mission in the
Internet area? Absolutely. The nation's broadband networks represent
the indispensable infrastructure for American competitiveness and
prospects for future job creation, economic growth, and innovation,"
Schlick wrote. "The Court did not adopt the view that the Commission
lacks authority to protect the openness of the Internet."
In 2005, the then Republican-led FCC voted for four network neutrality
principles that prohibited broadband providers from (1.) blocking any
of its users from sending or receiving the lawful content of the
user's choice over the Internet; (2.) preventing any of its users from
running the lawful applications or using the lawful services of the
user's choice; (3.) preventing any of its users from connecting to and
using on its network the user's choice of lawful devices that do not
harm the network; and (4.) depriving any of its users of the user's
entitlement to competition among network providers, application
providers, service providers, and content providers.
At the time of the 2005 vote, some commissioners warned these
"principles" could be challenged in court since the FCC had not held
any hearings on the principles. After the FCC enforced the principles
against Comcast in 2008 for throttling BitTorrent content, the cable
company did, indeed, sue the FCC contending the principles have no
More recently, FCC Chairman Julius Genachowski ordered the drafting a
formal set of Net neutrality rules--even though Congress has not given
the agency permission to begin.
"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," Genchowski said
in an April 6 statement.
Genachowski added, "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."