FCC Can't Enforce Net Neutrality, Appeals Court Rules

Apr 7, 2010 8:15 AM PST
WASHINGTON — The FCC can't ban Internet service providers from filtering certain types of traffic, the U.S. District Court for the Federal Circuit ruled Tuesday.

The decision strikes down the FCC's attempt to force "net neutrality" on Comcast and other Internet service providers and means ISPs could slow access to certain types of content, such as video, or charge more for heavy bandwidth users.

Complaints that Comcast was interfering with surfers' use of peer-to-peer networking programs spurrred the FCC to order Comcast to change its method of bandwidth management, saying the interference "contravene[d] ... federal policy."

Regulators ordered Comcast to outline the details of its new approach and update the government on its implementation progress. But Comcast appealed the FCCs order claiming, among other things, that the FCC has no jurisdiction over its management practices.

But the Federal Circuit rejected the FCC's "theory of ancillary authority." The FCC has said that it was obliged into the issue under the Communications Act of 1934, the Telecommunications Act of 1996 and congressional policy.

The court vacated the FCC's order, ruling that the regulatory agency "failed to tie its assertion of ancillary authority over Comcast's Internet service to any 'statutorily mandated responsibility.'"

The court's decision Tuesday likely won't be the end of the debate or implementation of public policy over Net Neutrality and could spell the overhaul of broadband policy.

The FCC could appeal Comcast’s win to the full panel of the Federal Circuit or directly to the Supreme Court. It also could reclassify ISPs as a so-called Title II service providers, like phone companies, which would mean greater regulation.

Another option could be that Congress could grant the FCC more power and create Net Neutrality regulation.

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