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It’s almost a cliche that even if an appeals court appears to ask tough questions about an issue, it rarely translates over to a decision. Such was not the case Jan. 8 when the U.S. Court of Appeals heard Comcast’s appeal of the 2008 Federal Communications Commission ruling that the cable broadband provider violated the agency’s network neutrality principles.
At the hearing, judges repeatedly pressed FCC attorneys on where the agency drew its authority to enforce the network neutrality principles from, and when the court issued its opinion April 6, ruling on Comcast’s side, the question was still the same.
The court ruled that the FCC did not have the authority to order Comcast to cease and desist throttling of BitTorrent traffic in 2008. The three-judge panel said, “Because the FCC ‘has failed to tie its assertion’ of regulatory authority to an actual law enacted by Congress, the agency does not have the power to regulate an Internet provider’s network management practices,” Cnet reported.
Congress has 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.'”
For the FCC, the ruling was a setback after years of pushing for network neutrality. FCC spokesperson Jen Howard issued an April 6 statement:
““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.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.”“
In 2005, the then Republican-led FCC voted for four network neutrality principles: “(1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; (3) consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) consumers are entitled to competition among network providers, application and 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 them. After the FCC enforced the principles against Comcast in 2008 for throttling BitTorrent content, the cable company did, indeed, sue the FCC, contending that the principles have no legal basis.