DC Circuit Court Rules Against FCC in Net Neutrality Case

In a ruling that will seriously limit the Federal Communications Commission's power over broadband providers, the DC Circuit Court ruled today in support of Comcast's claim that the FCC had overstepped its authority by ordering Comcast to treat all internet traffic equally.

The case dates back to an incident in 2007, in which several subscribers to Comcasts's broadband service realized the company was slowing their access to peer-to-peer shared content. The FCC intervened, ordering that the internet service provider had no right to discriminate between the kinds of content users sought over their network. The decision today undermines that intervention, and undermines the FCC's ability to regulate the networks of ISPs including Comcast, AT&T and Verizon.

From the conclusion of the decision issued by Judge Tatum of the DC Circuit Court:

It is true that “Congress gave the [FCC] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.” It is also true that “the Internet is such a technology,” indeed, “arguably the most important innovation in communications in a generation.” Yet notwithstanding the “difficult regulatory problem of rapid technological change” posed by the communications industry, “the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer Commission authority.” Because the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility,” we grant the petition for review and vacate the Order.

So, what's next? The FCC has not yet offered their own next steps, but in a statement today said they remained committed to the principles of a "free and open internet" (an objective everyone seems to agree on), and would base their policies on a solid legal foundation.

According to net neutrality advocates such as Free Press and the Media Access Project, that legal foundation should include reclassifying internet services under the more stringent "Title II" regulation framework, instead of the "Title I" framework that has been in use.  This would give the FCC clear, firm control over the ISPs.

Most internet service providers, on the other hand, would probably rather see the question referred to Congress, as Verizon EVP Tom Tauke argued in a speech here at NDN two weeks ago. Congress would be able to either clarify the FCC's role in internet access, or give the authority to another agency.

Just about everyone seems to agree that a clearer regulatory regime is necessary, if we are to achieve the objectives of an open internet and universal access.  For now, it's back to the drawing board.