A U.S. appeals court has ruled that the U.S. Federal Communications Commission did not have the authority to order Comcast to stop throttling peer-to-peer traffic in the name of network management.
The U.S. Court of Appeals for the District of Columbia Circuit, in an order Tuesday, overturned the FCC's August 2008 ruling forcing Comcast to abandon its network management efforts aimed at users of the BitTorrent peer-to-peer service and other applications. The FCC lacked "any statutorily mandated responsibility" to enforce network neutrality rules, wrote Judge David Tatel.
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Some Net neutrality advocates said the ruling raises broad questions about the FCC's authority to take any actions not spelled out in law.
FCC spokeswoman Jen Howard downplayed the broader implications of the ruling. The agency will move forward with new efforts to create Net neutrality rules, and it will have a "solid legal foundation," she said. "Today's court decision invalidated the prior commission's approach to preserving an open Internet," Howard said. "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."
The FCC's 3-2 vote to enforce a set of Net neutrality principles came after news reports in late 2007 that Comcast was slowing BitTorrent traffic for many customers. Comcast first denied it was throttling traffic, then said it was doing so only to protect customers from network congestion.
The appeals court ruling may call into question the FCC's authority to move forward with formal Net neutrality rules. The FCC in October launched a rulemaking process to formalize the Net neutrality principles in place since 2005, and Thursday is the deadline for reply comments in that rulemaking proceeding.
The FCC did not make convincing arguments that it has so-called "ancillary authority" to regulate cable broadband service, which the agency classified as a lightly regulated information service in 2002, Tatel wrote.
Unless the FCC takes action to reclassify broadband service, the court's decision calls into question FCC authority in many areas, including protecting broadband consumer privacy and redirecting money from the Universal Service Fund (USF) into broadband deployment, said Gigi Sohn, president of Public Knowledge, a digital rights group that complained to the FCC about Comcast's traffic throttling.
"Today's appeals court decision means there are no protections in the law for consumers' broadband services," Sohn said in a statement. "Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others."