Court Questions FCC Authority to Impose Net Neutrality
By Tony Bradley
No decision has been made yet, but, if Friday’s arguments before the U.S. Court of Appeals in DC are any indication, it doesn’t appear that the FCC will prevail in exerting its authority over Comcast. Losing this battle may be just what the FCC needs to move forward with its efforts to formalize net neutrality guidelines.
Comcast v. FCC
The case before the court is an appeal from Comcast related to sanctions imposed on it by the FCC for discriminating against peer-to-peer networking file traffic in an effort to throttle bandwidth demand on its broadband network. Comcast’s challenge claims the FCC has no such authority.
FCC chairman Julius Genachowski has stated that the FCC acted based on the Four Freedoms outlined by the previous FCC administration in 2005. These principles, while not formal rules, have been used to govern net neutrality on a case-by-case basis:
1. Consumers are entitled to access the lawful Internet content of their choice.
2. Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. Consumers are entitled to connect their choice of legal devices that do not harm the network.
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.
No Established Authority
The crux of the FCC sanctions lies with the first and second principles. However, the caveats of “subject to the needs of law enforcement” and “that do not harm the network” provide ample latitude for providers to act to restrict certain activities or types of network traffic.
The Comcast appeal claims “There was simply no federal law to interpret, enforce, or apply against Comcast” in challenging the FCC authority, and the three-judge panel of the appeals court appears to agree with that assertion.
The reality is that Comcast, and the appeals court if it ultimately sides with Comcast, have a valid point. While the Four Freedoms were established and documented, they represent more of a general framework rather than established rules. The fact is that the FCC does not have formal net neutrality rules in place and its authority to implement them is up for debate.
A Case for Net Neutrality
Based on how the case is proceeding now, it seems obvious that the appeals court will decide in favor of Comcast, leading to misguided speculation that the case will validate opposition to the FCC authority over Internet providers and put a nail in the coffin of its efforts at establishing formal net neutrality rules.
On the contrary, losing this case could provide the impetus to more formally define the FCC authority over Internet providers, and provide momentum to push through the net neutrality rules. The FCC is fortunate that the court makes decisions based on established rules and precedent, but it does not make policy or have any authority itself to define or restrict the scope of the FCC.
If, in fact, Comcast wins its appeal based on the fact that the Four Freedoms are merely a loose set of principles rather than a formalized regulatory framework, it underscores the importance of creating such a framework.
Losing this court case will provide the FCC with tangible proof for why the pursuit of net neutrality is so urgent, and give Congress incentive to more clearly specify the scope of the FCC’s authority to oversee and police wired and wireless broadband providers.
Comcast prevailing in this appeal could be just the incentive needed to drive FCC efforts to develop formal net neutrality rules.