Cyberlaw Cases

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).

We’ve previously covered the challenge to the FCC’s 2008 Order declaring Comcast’s network management practices unreasonable and discriminatory. The FCC recently filed its brief to the D.C. Circuit, as have amici and intervenors. Here’s a rundown of those briefs.
Continue Reading »

Today FCC Chairman Julius Genachowski announced the Commission’s plan to expand and reinforce its 2005 Internet Policy Statement on network neutrality.

The initial policy statement outlined four principles to guide the Commission’s enforcement efforts:

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

According to Genachowski, these guidelines will be supplemented by two additional principles – nondiscrimination and transparency.

First, the Commission hopes to prevent discrimination on the basis of content or application, while permitting reasonable network management policies. Second, the Commission seeks to ensure that information regarding network management practices is available to consumers. And in a break from the FCC’s historic fixation on technology- and medium-specific rules, Genachowski suggested these principles apply to all platforms for accessing the Internet, including mobile devices. An October Notice of Proposed Rulemaking will seek input on these network neutrality principles.

The Commission’s statement today is a logical progression of its previous Policy Statement and President Obama’s network neutrality policy commitments from the 2008 campaign.  But the effort to enshrine these principles in FCC regulations rather than leaving them embodied in a policy statement has some implications for the Comcast litigation. In fact, the FCC’s move is likely, in part, a response to Comcast’s challenge.

The FCC’s ability to point to regulations rather than a policy statement won’t undermine Comcast’s argument that the Commission lacks any statutory basis to exercise its ancillary authority. But regulations could put the FCC on surer administrative footing in future efforts to enforce its network neutrality principles – assuming the court finds the Commission has the necessary authority.

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. Continue Reading »