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    FCC: Court Ruling Threatens National Broadband Plan

    Written by

    Roy Mark
    Published April 8, 2010
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      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
      legal content.
      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
      legal basis.
      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.”

      Roy Mark
      Roy Mark

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