A federal appeals court ruled yesterday the FCC overstepped its authority in attempting to prevent Comcast's Internet throttling, an action that has thrown into disarray the commission's plans to codify net neutrality regulations.
In a 3-0 decision, the U.S. Court of Appeals for the District of Columbia said the FCC overstepped its statutory authority when it cited Comcast in 2008 for preventing users from accessing peer-to-peer file sharing services. The court said the FCC could not rely on its "ancillary jurisdiction" to regulate how Comcast managed its network. The ruling casts a shadow on the FCC's net neutrality action launched in October.
The FCC appeared undaunted by the ruling, and in a statement FCC spokeswoman Jen Howard said the commission remains committed to promoting policies for an open Internet, and that it will do so on solid legal footing. "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," she said.
The CTIA and wireless carriers have repeatedly argued that net neutrality rules should not be applied to wireless networks, particularly because wireless network architecture is inherently different from that of wired networks. Final comments on the FCC's net neutrality draft proposals--which seek to determine how, in what time frame and to what extent net neutrality should apply to wireless--are due tomorrow.
CTIA President Steve Largent praised the court's decision, and in a statement said it "suggests that it is time to turn away from murky regulatory debates and focus on connecting all Americans and leading the world in broadband."
Barbara Esbin, a senior fellow at the Progress and Freedom Foundation, a free market-oriented think tank, said the court's decision casts doubt on whether the FCC can move forward with its net neutrality proceeding. "I think from my perspective it has called into question the jurisdictional basis the FCC cited in its notice of proposed rulemaking, because it made no bones about the fact that it was relying on essentially the same authority that it had relied on in the Comcast order," she told FierceWireless.
The FCC appears to have three options. One is to appeal the ruling, which could result in a lengthy legal proceeding. Another route is to seek explicit Congressional authority to regulate broadband services. A third option--and the most likely--is for the FCC to reclassify broadband as a common carrier service, something major telcos such as AT&T and Verizon have resisted.
Esbin said the best way for the FCC to move forward is to get approval from Congress to expand its regulatory authority, rather than reclassifying. "I think it makes sense to get authority from Congress no matter who says what," she said. However, Art Brodsky, a spokesman for the public interest group Public Knowledge, said the FCC should move to reclassify broadband, because doing so would ensure "some basic enduring principles like non-discrimination, open access."
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