Case and Court:
Comcast Corp. v. FCC (D.C. Cir.)
See our prior coverage of this case: Comcast: Not-So-Brief Brief Roundup and Is the FCC Authorized to Promote Net Neutrality?
The DC Circuit issued its opinion in Comcast Corp. v. FCC today, holding that the Commission’s ancillary authority does not extend to its efforts to ensure network neutrality.
Having only skimmed the decision, it seems the court focused on the FCC’s effort to tie its Comcast adjudication to Congressional policy statements in the Telecommunications Act. Such policy statements, as opposed to affirmative delegations of regulatory authority, are simply incapable of empowering the Commission through ancillary authority according to the court.
The court appears to largely ignore what always struck me as the FCC’s strongest arguments – that it is entitled to regulate Comcast’s network management practices because of their impact on telephone carriers and broadcasters. By discriminating against competing voice and video service providers, Comcast’s actions affect industries clearly within the FCC’s regulatory ambit. The court suggests that the Commission waived those arguments by not relying on them in the underlying order.
The decision may leave the FCC some room to flex its net neutrality muscles again on a stronger record that more fully articulates the arguments not rejected here. The other options for effective neutrality regulation would now seem to require either wholesale reclassification of ISPs as common carriers or explicit Congressional delegation of authority to the FCC. No doubt all three of these options will be much discussed in the coming weeks.
See also:
- Mark Giangrande, FCC Loses Comcast Appeal on Net Regulation, Law Librarian Blog (Apr. 6, 2010).
- Nate Anderson, Court: FCC had no right to sanction Comcast for P2P blocking, Ars Technica (Apr. 6, 2010).