The US Circuit Court of Appeals for the District of Columbia Circuit appeared to be leaning toward the view that the FCC overstepped its bounds in applying sanctions to cable operator/ISP provider Comcast for blocking peer-to-peer application BitTorrent. But it is possible that the objection is based on procedure rather than an over-arching ruling that the FCC completely lacks such authority.
Comcast had argued that the FCC was acting on mere principle, and the very fact that it was seeking to enshrine network neutrality principles, established as such as they may have been, into the regulatory framework underscored that very point.
The FCC stood on its claim to broad authority to regulate communications businesses, and had a great deal of support from some of the very watchdog organizations that have frequently been at odds with the Commission over other matters, such as broadcast ownership deregulation. (Of course, much of that opposition came under a different administration.)
According to Reuters, one of the three judges, A. Raymond Randolph, said that it appears the FCC acted based on policy that was “…aspirational, not operational.”
However, supporters of the FCC argue that as long as the FCC is legally entitled to enforce a concept such as network neutrality, and as long as it has properly entered the regulations, it may be more of a setback than a loss. Pending legislation in Congress and/or enshrinement of regulation in the FCC’s own proceedings could remedy the situation.
FCC Chairman Julius Genachowski commented, “This case underscores the importance of the FCC’s ongoing rulemaking to preserve the free and open Internet. I remain confident the Commission possesses the legal authority it needs and look forward to reviewing the court’s decision when it issues.”