Court Deals Blow to Network Neutrality

The U.S. Court of Appeals for the District of Columbia Circuit dealt network neutrality a serious blow April 6, ruling that the Federal Communications Commission did not have the authority to order Comcast to cease and desist throttling of BitTorrent traffic in 2008. Comcast accepted the order but appealed the decision to the courts.
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, commissioners warned that 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.
But the court April 6 said the FCC “has failed to tie its assertion” of regulatory authority to any actual law enacted by Congress, and the agency does not have the authority to regulate an Internet provider’s network management practices. Congress had repeatedly declined 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.'”
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,” Genachowski 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.”
Rep. Ed Markey, D-Mass., who has unsuccessfully pushed for network neutrality in Congress said, “It is important to note that the Court neither called into question the wisdom of network neutrality policies nor did it exonerate Comcast for its unreasonable interference with lawful consumer Internet use.”