Comcast v. F.C.C. – The D.C. Circuit Court Case on Net Neutrality

     On January 12 I posted this entry on Net Neutrality – Where It Stands in Court and in Congress, which describes the case of Comcast Corporation v. F.C.C. as well as legislation pending in Congress. Yesterday the D.C. Circuit Court of Appeals issued its decision in this case in favor of Comcast.  The Court did not reach the question of whether Comcast had wrongfully interfered with its subscribers' use of internet services like file sharing and Skype; instead it held that the F.C.C. lacks statutory authority to regulate broadband services.  According to news reports, the court's decision will make it more difficult to enact legislation safeguarding net neutrality.

     The previous entry describes the facts as follows:

On October 19, 2007, Peter Svensson of the AP reported that Comcast, a major internet service provider, was interfering with peer-to-peer applications allowing file-sharing of movies or television shows and audio/video connections such as Skype by surreptitiously breaking connections between users. Comcast had previously assured the F.C.C. that it was not engaging in this conduct, but after the publication of Svensson's article it was forced to admit that it had. This was in violation of a "policy statement" that had been issued by the F.C.C. prohibiting discrimination of this sort by ISPs. As a result, the internet consumer organization Public Knowledge filed a complaint against Comcast before the Federal Communications Commission. Comcast agreed to stop this practice, but the F.C.C. wanted more � it entered an order requiring Comcast to disclose to the agency any other regulation of internet traffic that it engages in. Comcast filed a petition in the United States Circuit Court of Appeals for the District of Columbia challenging both the authority of the F.C.C. to regulate the internet, and the procedure that the F.C.C. followed in entering its order against Comcast. Here is a link to the brief filed by Comcast, in which Comcast claims that when Congress enacted deregulation legislation it stripped the F.C.C. of the power to oversee internet service providers. At page 15 of its brief Comcast states:

"There was simply no federal law to interpret, enforce, or apply against Comcast."

The F.C.C. contends in its brief that Congress did leave it "ancillary jurisdiction" to regulation information services, and that its order against Comcast was justified in light of Comcast's secretive conduct and misleading statements to the F.C.C.

     In its opinion handed down yesterday the Circuit Court states the issue succinctly- does federal law give the F.C.C. the power to regulate broadband internet service?

Through the Communications Act of 1934, as amended over the decades, Congress has given the Commission express and expansive authority to regulate common carrier services, including landline telephony; radio transmissions, including broadcast television, radio, and cellular telephony; and �cable services,� including cable television.  In this case, the Commission does not claim that Congress has given it express authority to regulate Comcast�s Internet service. Indeed, in its still-binding 2002 Cable Modem Order, the Commission ruled that cable Internet service is neither a �telecommunications service� covered byTitle II of the Communications Act nor a �cable service� covered by Title VI.  The Commission therefore rests its assertion of authority over Comcast�s network management practices on the broad language of section 4(i) of the Act: �The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.� 

     The Circuit Court ruled that the F.C.C. does not have ancillary jurisdiction to regulate broadband internet service. 

     In a video posted yesterday Michael Weinberg and John Bergmayer of Public Knowledge, which was one of the groups that brought this action against Comcast, explain why the Court refused to find that the F.C.C. has ancillary jurisdiction to regulate broadband:

Today the DC Circuit Court of Appeals released its decision in the Comcast/BitTorrent case. The short version is that the Court brought into serious question the FCC�s ability to regulate broadband Internet access and protect consumers under its current rules. Here is the longer version:

As we have written before, the FCC claimed that it had the power to regulate broadband access (or at least stop ISPs like Comcast from discriminating against some Internet content) because it had �ancillary authority.� While the Congress doesn�t address broadband explicitly in the Communications Act, the FCC pointed to a number of laws that would be undermined unless it could protect broadband consumers.

For example, the FCC pointed to 47 U.S.C. 230(b)�s statement that �it is the policy of the United States � to promote the continued development of the Internet and other interactive computer services� and �to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet� to show that Congress wanted the FCC to promote the development of the Internet. The FCC found nondiscrimination rules to be �ancillary� to this goal. The FCC uses similar reasoning with a few other statutory provisions.

Today, the DC Circuit rejected the statutes the FCC relied on as justifications for regulating broadband Internet in its original Order. It characterized the statutes the FCC relied on as �policy statements� instead of delegations of power. The Court said that it was worried that if the FCC could justify ancillary authority with Congressional policy statements, the FCC could do whatever it wanted, whenever it wanted.

     In a post entitled The FCC Lacks the Authority to Protect Internet Users–Now What? Mehan Jayasuriya of Public Knowledge suggests that the FCC might reclassify broadband internet service as being within its jurisdiction; that Congress might enact legislation expressly granting the FCC this authority; that the Federal Trade Commission should take action to preserve net neutrality; or that users should switch to dial-up service:

So what now? How will the FCC protect Internet users and innovators, let alone implement the provisions in its ambitious National Broadband Plan? The FCC has a few options in front of it, the best of which is to re-reclassify broadband services under Title II of the Communications Act. If broadband services are placed under Title II, the FCC will have clear authority to regulate those services and will be able to prevent ISPs from discriminating against certain types of traffic online. The FCC could also ask Congress to grant it explicit authority to regulate broadband services, though this would be a longer, more difficult and more tenuous process.

But what are we supposed to do in the meantime? Mike Masnick over at TechDirt has suggested that the Federal Trade Commission (FTC) should step in and deliver a slap on the wrist to Comcast, "for misleading its customers about what type of service they were getting, and what the limitations were on those services". But unlike the FCC, the FTC is ill-suited to regulate communications services–its authority here would likely stem from a claim of false advertising. Sure, the FTC could require Comcast to fully disclose its business practices but that would be cold comfort for the 85 percent of Americans who have no choice when it comes to broadband service providers. If Comcast is the only high-speed service provider in your neighborhood–as they are in mine–your choice would be between using the Internet on Comcast's terms or not using the Internet at all.

With any luck, the FCC will act swiftly to resolve this matter, thereby ensuring that it has the authority to protect Internet users' privacy, innovation and your ability to connect to the websites and services of your choosing. But what if you're concerned about an ISP blocking your bits in the meantime? You might want to switch to dial-up. After all, there are plenty of dial-up ISPs to choose from, it's easy to switch between them and your right to use them is protected by the FCC, since you connect to them using your telephone line–a Title II service.

     Kim Hart and Tony Romm of The Hill report on the reaction of Congressional leaders to the Comcast decision and their determination to protect net neutrality.  The title of their piece – Ruling on FCC Hands Congress a Tough Task - refers to the rich influence of the communications companies.  Chris Tibbey of Home Media Magazine reports on the reactions of industry representatives and consumer advocates; Comcast and Time Warner pledge to respect  the principle of "open internet experience," but critics point out that there is nothing to stop ISPs from forcing users to utilize their own proprietary programs and processes to access content.  Finally, Joelle Tessler of the AP has published this superb summary of the court's decision and its implications.

Tagged as: chris tibbey, comcast v. f.c.c., comcast v. fcc, internet access, joelle tessler, john bergmayer, kim hart, mehan jayasuriya, michael weinberg, net neutrality, open internet access, public knowledge, tony romm