"As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites," added Derek Turner, research director for Free Press, a second digital rights group that complained about Comcast's traffic management. "The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. This cannot be an acceptable outcome for the American public and requires immediate FCC action to re-establish legal authority."
FCC lawyers argued that its net neutrality decision was "reasonably ancillary" to the agency's enforcement of several of its responsibilities under the Communications Act, the 1934 law giving the FCC its primary authority. But the FCC did not prove the net neutrality action was necessary, Tatel wrote.
"The Commission has failed to make that showing," he wrote. "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.'"
While the FCC has some ancillary authority outside that spelled out in the Communications Act, it must defend that authority in a "case-by-case basis," Tatel wrote.
The Associated Press, in late 2007, reported that Comcast was slowing BitTorrent and some other traffic without telling its customers. Consumer rights groups Public Knowledge and Free Press, along with online video distributor Vuze, filed complaints with the FCC.
Comcast said it throttled peer-to-peer traffic only during times of peak congestion, but studies from the FCC and the Max Planck Institute for Software Systems in Germany contended that Comcast slowed BitTorrent traffic around the clock.
Sohn and Turner called on the FCC to begin a proceeding that would reclassify broadband carriers as so-called common carriers, which are regulated more heavily than the current classification of information provider. The FCC, during former President George Bush's administration, moved away from that common carrier classification.
"If it chooses, the commission can continue to roll the dice and let the courts decide each time it wants to try to put some consumer protections on a broadband service," Sohn said. "The court decision left open that option. We have a different idea. The FCC should immediately start a proceeding bringing Internet access service back under some common-carrier regulation similar to that used for decades."
However, it's the wrong time to regulate broadband at the same time the FCC is trying to implement the national broadband plan, said Thomas Lenard, president of the Technology Policy Institute, a free-market think tank. Lenard praised the court's decision, saying Net neutrality rules would ultimately hurt consumers.
The national broadband plan focuses on rolling out broadband to all corners of the U.S. and increasing broadband speeds.
"I am concerned ... that the Commission may now attempt to reclassify broadband as a telecommunications service, subjecting it to traditional public utility-type regulation," Lenard said in a statement. "In my opinion, this would be a grave mistake that would undermine the goals of the recently released national broadband plan.
Comcast, in a statement, said it was "gratified" by the court's decision. "Our primary goal was always to clear our name and reputation," the statement said. "We have always been focused on serving our customers and delivering the quality open-Internet experience consumers want. Comcast remains committed to the FCC's existing open Internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet."