D.C. Circuit: FCC Cannot Mandate Net Neutrality

In a unanimous decision today, the D.C. Circuit vacated an order previously issued by the Federal Communications Commission (FCC), mandating that Comcast not selectively limit its users’ bandwidth–namely, that the FCC cannot regulate Comcast’s practice of limiting bandwidth use by peer-to-peer programs. See below for a breakdown of what the decision means for net neutrality:

The Ruling – Today’s ruling holds that the FCC does not have the statutory authority to regulate Comcast’s bandwidth use policies. Since no congressional statute gives the FCC the direct authority to regulate Comcast’s bandwidth use policies, the FCC attempted in this case to rely on its ancillary authority under 47 U.S.C. § 154(i). The court held that regulating bandwidth use practices was not sufficiently related to the FCC’s job as defined by Congress, citing American Library Association v. FCC. Essentially, the court opines that Congress has not authorized the FCC to regulate Comcast.

So What Now? – Today’s ruling leaves the door open for Congress to pass a bill authorizing the FCC to take action against Internet service providers and to mandate net neutrality. Unless and until Congress decides to do so, however, the ruling means that the FCC cannot take action to stop Comcast from regulating bandwidth use by peer-to-peer programs. A 2008 bill that would grant that authority has been inactive in the House since its original subcommittee hearing.

The Limits of the Decision – Narrowly construed, today’s ruling still allows the FCC to regulate Internet service providers’ bandwidth policies as they relate to web-based content. For example, the holding today does not limit the FCC from ensuring that Comcast (or any other provider) gives equal treatment to all websites when allocating bandwidth. Given that current FCC Chairman Kevin J. Martin has spoken out in favor of preserving net neutrality, it is likely that the broader issue will be litigated in the future. (In fact, in the FCC’s official statement on the case, it alludes to other avenues for achieving net neutrality.)

Private Lawsuits – Today’s ruling also has no effect on the possibility of future private lawsuits against Internet service providers in reaction to alleged discriminatory bandwidth policies. Comcast’s policies at issue in this case, for example, were the subject of a class action suit brought under breach of contract claims, and unfair competition and false advertising laws. Comcast proposed to settle the case in late 2009 for $16 million.

Read More
The Opinion from the D.C. Circuit
The Proposed Class Action Settlement Agreement
NPR’s Coverage of the Story
The FCC’s Statement on the Case

— Kevin Lumpkin

Image Source