Legal Alert: Court Slaps Back at FCC "Net Neutrality" in Comcast Case

by Elizabeth Wharton*

In a direct hit to its "Net Neutrality" proposals, a federal appeals court ruled today that the Federal Communications Commission ("FCC") lacks the authority to "regulate an internet service provider's network management practices." A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit held in Comcast Corp. v. FCC, No. 08-1291, that the FCC failed to prove it had the statutory authority to interfere with Comcast Corp.'s network management practices and vacated the 2008 FCC citation against Comcast.

In a decision that is expected to move forward to the Supreme Court, the FCC must now evaluate whether other "Net Neutrality" principles can continue to be enforced. Under this decision, regulation of internet services is not permitted. The court cited that while regulation of common carrier services, including landline telephony, radio transmissions, cable services, and broadcase television are covered through the Communications Act of 1934 (as amended), cable internet service and internet service are not covered. The FCC had argued that their authority stemmed from section 4(i) of the Communications Act, granting the FCC the ability to perform any acts, rules, regulations and orders as necessary in the execution of its functions. The FCC claimed that Comcast's decision to limit use of large bandwidth peer-to-peer networking applications violated the FCC's Internet Policy Statement. Under the FCC's Internet Policy Statement, consumers are entitled to lawful internet access of their choice and use of applications and services they choose. Comcast countered that their interference with the peer-to-peer programs was necessary to manage network band-width capacity.


The 36-page decision released today followed oral arguments in January.

*Legal-E: My Views From the Bar. I am a lawyer, just not yours - My posts are intended to present issues from my point of view and are not intended to be advice, legal or otherwise.