Court Limits FCC Internet Jurisdiction, Gives Carriers More Control

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Last week, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in Comcast v. Federal Communications Commission (FCC), which petitioned the Court to review an FCC Order issued in August of 2008. The court ruled that the FCC lacked regulatory authority over Comcast’s use of controversial tactics to manage selected types of Internet traffic flowing over the company’s broadband Internet network.

Sena Fitzmaurice, vice president of government communications for Comcast, was pleased with the outcome: “We are gratified by the Court’s decision to vacate the previous FCC’s order. Our primary goal was always to clear our name and reputation. We have always been focused on serving our customers and delivering the quality open-Internet experience consumers want. Comcast remains committed to the FCC’s existing open Internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.”

In a response to the court decision, the Center for Democracy & Technology noted that the court’s decision raises serious questions about how to best protect the public’s access to and use of communications in the Internet age. “Either the FCC or Congress is going to have to go back to the drawing board and reconsider the authority that the agency can exercise over ‘last mile’ providers of Internet access,” believes Leslie Harris, president and CEO of the Center for Democracy & Technology. “Otherwise, the legal landscape will remain murky and ultimately fail to protect open and unfettered Internet access.”

CDT states that the outcome of the ruling means that the FCC does not have a free hand to assert jurisdiction over Internet.

Many, like the Open Internet Coalition, consider the unanimous opinion, written by Circuit Judge Tatel and joined by Chief Judge Sentelle and Senior Circuit Judge Randolph, to be a blow to an open Internet. According to Markham Erickson, executive director, Open Internet Coalition: “The DC Circuit decision in Comcast creates a dangerous situation, one where the health and openness of broadband Internet is being held hostage by the behavior of the major telco and cable providers.”

Erickson says that the Court has taken an aggressive position of rejecting the FCC’s legal authority to implement broadband Internet policy under Title I of the Communications Act. “The legal challenge to Title I authority by Comcast has created an outcome where the FCC has no option but to immediately open a proceeding to clarify its authority over broadband network providers under Title II,” he states. “The Court’s sweeping decision eliminates the Agency’s power to either enforce the Internet Policy Statement or possibly to promulgate new open Internet rules to protect consumers and small businesses under Title I. As a result, the FCC is now unable to police broadband networks against anti-competitive and anti-consumer behavior by broadband providers, and may not be able to implement many of the elements of the National Broadband Plan, including comprehensive Universal Service Fund (USF) reform.

The ruling appears to pave the way to a new approach. CDT believes “that some FCC jurisdiction over companies that provide Internet ‘on ramps’ makes sense and can play an important role in protecting the medium’s open nature; however, the FCC does not and should not have any authority over the broad range of commerce, speech, and technological innovation that the Internet enables.”

Erickson believes the Judges understood the implications of the ruling: “The court recognized this issue and appeared to invite the Commission to proceed against Comcast and other broadband Internet access providers under Title II. Establishing limited Title II authority with restraint and forbearance over broadband Internet access will remedy the Agency’s own now-discredited attempt to cobble together ancillary authority under Title I.”