Is the FCC Authorized to Promote Net Neutrality?
Case and Court:
Comcast Corp. v. FCC (D.C. Cir.).
Background:
In 2007, subscribers to Comcast’s broadband internet service began reporting difficulty using BitTorrent clients and other peer to peer applications. When these reports surfaced, Comcast disclaimed any responsibility. But two independent studies by the Associated Press and the Electronic Frontier Foundation proved that Comcast was proactively interfering with its customers’ network traffic. Through deep packet inspection, Comcast determined when its customers were uploading peer to peer data and spoofed reset packets, which terminated their subscribers’ connections to other network users.
In response, Comcast admitted its interference, but maintained that its practices were targeted to ease congestion that exceeded thresholds at specific places and times. After further studies disproved this claim, Comcast reluctantly revealed that its “P2P management is triggered… regardless of the level of overall network congestion at th[e] time, and regardless of the time of day.”
In August of 2008, the FCC issued an order declaring Comcast’s practices unreasonable and discriminatory. The Commission noted the competitive threat posed by practices that discriminate against applications like BitTorrent that compete with Comcast’s own video on demand offerings. The order required Comcast to reveal its network management practices, detail its plans to stop those practices, and disclose to the FCC and the public its new network management practices.
Comcast has sought review of the FCC’s order by the Court of Appeals for the District of Columbia Circuit.
What’s at Stake:
At its core, Comcast’s challenge to the order calls into question the Commission’s authority to implement any regulatory strategy to promote or maintain network neutrality absent an explicit congressional directive.
The technical question is whether the FCC’s rather amorphous ancillary authority empowered it to issue the Comcast order. As the FCC first articulated in its Internet Policy Statement, it understands the “national Internet policy” outlined in § 230(b) of the Communications Decency Act to establish the basis for its exercise of ancillary authority over network neutrality issues. Section 230(b) states that it is the policy of the United States to “to preserve the vibrant and competitive free market that presently exists for the Internet” and “to promote the continued development of the Internet.” According to the Commission, those goals require it to ensure that “consumers are entitled to run applications and use services of their choice” and “to access the lawful Internet content of their choice,” subject to “reasonable network management” practices.1
Comcast argues that neither the Internet Policy Statement nor the statutory policy objectives create any enforceable law that Comcast could have violated through its network management practices. Further, it maintains that statements of policy are insufficient to justify the exercise of ancillary authority.
The resolution of these questions will have a profound effect on the FCC’s ability to target discriminatory and anticompetitive network management practices like those implemented by Comcast. As ISPs increasingly find themselves competing with sites and services that rely on their pipes, the need for some oversight seems apparent. The question is whether regulation will require Congress to act.
See also:
- Kevin Werbach, Net Neutrality: I told you so, Werblog (Feb. 26, 2009).
- Susan Crawford, Comcast, Susan Crawford blog (Aug. 21, 2008).
- David Sohn, FCC “Enforcement” Against Comcast?, PolicyBeta (Jul. 16, 2008).
Footnotes
- In its order, the Commission also cites additional statutory objectives reflected in the Communications Act that it suggests trigger its ancillary authority, among them: “[to] encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans”; “to promote nondiscriminatory accessibility by the broadest number of users and vendors of communications products and services to public telecommunications networks used to provide telecommunications services”; and “to ensure the ability of users and information providers to seamlessly and transparently transmit and receive information between and across telecommunications networks.” [↩]