FCC studying Court ruling, weighing alternatives


In a blog post, FCC General Counsel Austin Schlick said the Commission’s loss to Comcast in the DC Circuit Court was narrowly tied to the approach to internet regulation adopted in 2005, and in no way did it undermine the Commission’s ultimate authority to regulate the internet.

His assessment of Comcast’s role in the matter is that the cable giant wasn’t quite as innocent as it would like to claim. “The Comcast/BitTorrent case began in 2007, when Internet users discovered that Comcast was secretly interfering with its customers’ lawful use of BitTorrent and other peer-to-peer applications. After first denying that the practice existed, Comcast eventually agreed to end it.”

Schlick explained why the FCC lost the court case: “In yesterday’s ruling, the U.S. Court of Appeals for the District of Columbia Circuit held that the Commission’s 2008 order lacked a sufficient statutory basis, because it did not identify ‘any express statutory delegation of authority’ for putting an end to Comcast’s undisclosed interference with its own customers’ communications. That’s an important ruling: It undermines the legal approach the FCC adopted in 2005 to fulfill its statutory duty of being the cop-on-the-beat for 21st Century communications networks.”

He said regardless of the ruling, the FCC “absolutely” has an internet mission. “The Court did not adopt the view that the Commission lacks authority to protect the openness of the Internet. Furthermore, in 2009, Congress directed the agency to develop a plan to ensure that every American has access to broadband.”

After listing a number of elements in the National Broadband Plan that are unaffected by they ruling, Schlick detailed what he believes to be in jeopardy: “Among them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy.”

Schlick concluded, “The Commission must have a sound legal basis for implementing each of these recommendations. We are assessing the implications of yesterday’s decision for each one, to ensure that the Commission has adequate authority to execute the mission laid out in the Plan.”