Court lets Comcast off the hook for FCC’s traffic ticket


The Court of Appeals for the District of Columbia Circuit said that the FCC lacks the authority to enforce network neutrality principles, ruling in favor of Comcast in its capacity as an ISP. The FCC sees the ruling as a repudiation of the previous FCC administration, not a repudiation of the net neutrality concept.

The ruling stems from a 2008 order to Comcast from the FCC to cease blocking certain content from reaching its customers, in particular the blocking of peer-to-peer file-sharing technology BitTorrent. Comcast agreed to cease blocking it, but also went to court to challenge the FCC’s right to make the demand.

Explaining its ruling, the Court wrote, “The Commission has failed to make that showing. It relies principally on several Congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create ‘statutorily mandated responsibilities.’ The Commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast’s network management practices. We therefore grant Comcast’s petition for review and vacate the challenged order.”

In a statement, the FCC said, “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.”

Congress could provide help for the Commission. The next possible steps for the FCC include an appeal to the Supreme Court or the acquisition of legislative assistance. Senate Commerce Committee members Byron Dorgan (D-ND) and Olympia Snowe (R-ME)  have been promising just that for some time, if necessary.