A U.S. appeals court has ruled that the U.S. Federal Communications Commission did not have the authority to order Comcast to stop throttling peer-to-peer traffic in the name of network management.
The U.S. Court of Appeals for the District of Columbia Circuit, in an order Tuesday, overturned the FCC’s August 2008 ruling forcing Comcast to abandon its network management efforts aimed at users of the BitTorrent P-to-P (peer-to-peer) service and other applications. The FCC lacked “any statutorily mandated responsibility” to enforce network neutrality rules, wrote Judge David Tatel.
The FCC’s 3-2 vote to enforce a set of net neutrality principles came after news reports in late 2007 that Comcast was slowing BitTorrent traffic for many customers. Comcast first denied it was throttling traffic, then said it was doing so only to protect customers from network congestion.
The appeals court ruling may call into question the FCC’s authority to move forward with formal net neutrality rules. The FCC in October launched a rulemaking process to formalize the net neutrality principles in place since 2005, and Thursday is the deadline for reply comments in that rulemaking proceeding.
The FCC did not make convincing arguments that it has so-called “ancillary authority” to regulate cable broadband service, which the agency classified as a lightly regulated information service in 2002, Tatel wrote.
FCC lawyers argued that its net neutrality decision was “reasonably ancillary” to the agency’s enforcement of several of its responsibilities under the Communications Act, the 1934 law giving the FCC its primary authority. But the FCC did not prove the net neutrality action was necessary, Tatel wrote.
“The Commission has failed to make that showing,” he wrote. “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.'”
While the FCC has some ancillary authority outside that spelled out in the Communications Act, it must defend that authority in a “case-by-case basis,” Tatel wrote.
Representatives of Comcast and the FCC weren’t immediately available for comment on the decision.
The Associated Press, in late 2007, reported that Comcast was slowing BitTorrent and some other traffic without telling its customers. Consumer rights groups Public Knowledge and Free Press, along with online video distributor Vuze, filed complaints with the FCC.
Comcast has said it throttles P-to-P traffic only during times of peak congestion, but studies from the FCC and the Max Planck Institute for Software Systems in Germany contended that Comcast slowed BitTorrent traffic around the clock.
(More to follow.)