Judges Question FCC's Network Neutrality Authority

A three-judge federal panel appeared Jan. 8 to question the Federal Communications Commission's legal authority in the 2008 decision that found Comcast guilty of violating the FCC's network neutrality principles. Comcast complied with the FCC's order to stop throttling peer-to-peer Internet traffic from BitTorrent but in September 2008 appealed the decision.

The U.S. Court of Appeals for the District of Columbia Circuit hearing the appeal repeatedly pushed FCC attorney Austin Schlick to cite specifically what part of communications law the agency used to justify its authority, questions Schlick struggled to answer to the satisfaction of the judges.

The FCC, under the direction of then-Chairman Kevin Martin, declared that consumers are entitled to access the lawful content of their choice, run applications and services of their choice, and plug in and run the legal devices of their choice. The FCC also said consumers have a right to competition among network providers, application and service providers, and content providers. The "principles" were unanimously approved.

Comcast attorney Helgi Walker argued that the FCC was acting on a nonbinding set of principles instead of established FCC rules or direct authority of Congress. Comcast contends that its network management practices are reasonable under FCC rules.

"All that existed was a policy statement," Walker said on Jan. 8, according to Todd Shields for Bloomberg News, and added to the judges, "You can free us of this black mark on our record."

After the hearing, current FCC Chairman Julius Genachowski said in a statement, "This case underscores the importance of the FCC's ongoing rulemaking to preserve the free and open Internet. I remain confident the Commission possesses the legal authority it needs and look forward to reviewing the court's decision when it issues."

The FCC told the court it could ignore whether or not the FCC had the legal authority to sanction Comcast on the basis of its network neutrality principles and instead provide guidance on the FCC's rule making procedures. But Judge A. Raymond Randolph told Schlick, "We don't give guidance. We decide cases."

A split FCC voted Oct. 22 to begin consideration of network neutrality rules that would apply to both wired and wireless networks, codifying the agency's four existing network neutrality principles and adding two more rules of the road for broadband providers: a prohibition against ISPs discriminating against content or applications and a mandate that network management practices be transparent.

The three Democrats on the FCC, including Genachowski, voted for the rule-making process while Republicans Robert McDowell and Meredith Attwell Baker concurred in part and dissented in part. The agency is seeking public comment on the proposed rules with initial comments due by Jan. 14 and reply comments due by March 5.

"The problem is not merely that we've seen some significant situations where broadband providers have degraded the data streams of popular lawful services and blocked consumer access to lawful applications, even after the Commission adopted its openness principles," Genachowski said. "Nor is the problem merely that, when the policies summarized in the Internet Policy Statement and its initial four principles have been enforced by the Commission, they have been attacked, including in pending litigation, precisely because they are not rules developed through the kind of notice-and-public-comment process that we should commence today."

At the time of the 2005 vote, commissioners warned that the "principles" could be challenged in court since the FCC had not held any hearings on the principles.

"The heart of the problem is that, taken together, we face the dangerous combination of an uncertain legal framework with ongoing as well as emerging challenges to a free and open Internet," Genachowski said. "Given the potentially huge consequences of having the open Internet diminished through inaction, the time is now to move forward with consideration of fair and reasonable rules of the road, rules that would be enforceable and implemented on a case-by-case basis."

He added, "Indeed, it would be a serious failure of responsibility not to consider such rules, for that would be gambling with the most important technological innovation of our time."