In the DC Circuit Court of Appeals, the FCC has lost its argument that it has the authority to regulate an Internet Service Provider's (Comcast, Time Warner, etc.) network management practices - in this case, Comcast's practice of network throttling to limit its users' bittorrent traffic.
Background:
In August of last year, the FCC issued the following order:
We consider whether Comcast, a provider of broadband Internet access over cable lines, may selectively target and interfere with connections of peer-to-peer (P2P) applications under the facts of this case. Although Comcast asserts that its conduct is necessary to ease network congestion, we conclude that the company’s discriminatory and arbitrary practice unduly squelches the dynamic benefits of an open and accessible Internet and does not constitute reasonable network management. Moreover, Comcast’s failure to disclose the company’s practice to its customers has compounded the harm. Accordingly, we institute a plan that will bring Comcast’s unreasonable conduct to an end. In particular, we require Comcast within 30 days to disclose the details of their unreasonable network management practices, submit a compliance plan describing how it intends to stop these unreasonable management practices by the end of the year, and disclose to both the Commission and the public the details of the network management practices that it intends to deploy following termination of its current practices.
Summation of the court's holding:
Acknowledging that it has no express statutory authority over such practices, the Commission relies on section 4(i) of the Communications Act of 1934, which authorizes the Commission to “perform any and all acts, make such rules and regulations, and issue such orders, not 3 inconsistent with this chapter, as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i). 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.” Am. Library Ass’n v. FCC, 406 F.3d 689, 692 (D.C. Cir. 2005). The Commission has failed to make that showing. It relies principally on several Congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create “statutorily mandated responsibilities.” The Commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast’s network management practices. We therefore grant Comcast’s petition for review and vacate the challenged order.
The FCC argued that Comcast should be estopped from making their argument because of their advocacy of the opposite position in a California lawsuit, and that the SCOTUS decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services gives the FCC the authority to issue the order. The court rejected both the arguments, finding that even though the Brand X decision gave the FCC Title I some ancillary jurisdiction over Information Service Providers, "each and every assertion of jurisdiction over cable television must be independently justified as reasonably ancillary to the Commission’s power."
Ultimately the court found that the FCC didn't have "statutorily mandated responsibilities" when looking at the language that gives the FCC its authority; the court also found that the language looked to by the FCC for authority is merely "statements of policy" and such statements alone do not support ancillary authority unless supported by express delegations of regulatory authority.
Why Should You Care?
Simply put, the ability of the government, through the FCC, to tell Internet Service Providers what they can or cannot do is the ONLY capability we have as citizens to prevent these corporations from doing whatever they see fit with our communications network. As you can imagine, they envision a future where, by a decrease in the availability and diversity of information, they are able to monetize and control the way you access information. How would you feel if you turned on your computer at your media center in 10 years and the only thing available to you was what Comcast allowed you to see? They would serve as gatekeeper for what TV shows you can watch, what news you can read, and what websites you can access. They would quash the most unprecedented commingling of knowledge humanity has ever seen in an effort to monetize it - to dilute every channel with mindless drivel that exists on cable television today.
Free Press has released a statement
More Coverage:
Public Knowledge
Cecilia Kang at the Washington Post
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