Federal Court Tells FCC It Does Not Have Authority To Enforce Net Neutrality

This morning, the U.S Court of Appeals for the District of Columbia dealt the FCC a major blow in its drive to impose net neutrality on the nation’s broadband providers. A panel of three judges ruled that the FCC did not have the authority to order Comcast to stop slowing down BitTorrent traffic, and, more, broadly, that the FCC does not have the authority to enforce net neutrality.

The case started as a result of Comcast selectively slowing down certain types of traffic in 2007 — namely, BitTorrent — leading the FCC to order Comcast to stop the practice. Comcast challenged the order, claiming that the FCC didn’t have the authority to mandate net neutrality policy. Today’s ruling affirms Comcast’s stance.

This will strike a blow to FCC Chairman Julius Genachowski’s recently released broadband plan, but it was not entirely unexpected, and the FCC can still fight back. One option is for the FCC to reclassify broadband as a ‘Title II’ telecommunications service, which would give the FCC more control over it. It’s currently a ‘Title I’ information service, which the FCC has less power over.

Some carriers (who are opposed to net neutrality) have already warned the FCC not to do this, with Verizon EVP Tom Tauke stating on C-SPAN last month “Saying it is unwise to classify broadband as a Title II service is an understatement… We would end up with years of court battles”.  Other possible routes for the FCC include taking the case to the Supreme Court, or lobbying congress to grant the FCC the ability to more effectively regulate broadband.

The FCC released the following statement about the decision:

“The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies — all of which will be designed to foster innovation and investment while protecting and empowering consumers — on a solid legal foundation.”
“Today’s court decision invalidated the prior Commission’s approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.”