Commentary

Court Indicates FCC Neutrality Ruling On Thin Ice

A federal appellate court reportedly appeared sympathetic to Comcast's arguments that it shouldn't have been sanctioned for violating neutrality principles by throttling peer-to-peer traffic.

Comcast maintains that the Federal Communication Commission's Internet principles, set out in a 2005 policy statement, were never codified as regulations. Therefore, the company says, it wasn't put on notice that the principles were legally binding.

Comcast also makes the far broader argument that the FCC has no authority to regulate the Internet.

This morning, Comcast finally got its day in court. The company asked a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to overturn the FCC's ruling against Comcast.

Some panel members openly questioned whether the FCC overstepped its bounds, according to accounts from The Wall Street Journal, Business Week, Multichannel News and others.

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"You can't get an unbridled, roving commission to go about doing good," Chief Judge David Sentelle said, Dow Jones reports.

Of course, judges' statements during oral argument don't necessarily indicate that they know how they will rule. Even if some judges currently are inclined to hand Comcast a victory, they could change their minds as they mull the issue some more.

But if the court does rule in favor of Comcast, the decision could effectively put the kibosh on the FCC's attempts to craft neutrality regulations, depending on how far the judges go. Should the appellate court declare that the FCC lacks authority over the Web, the ruling could prove fatal to any new neutrality rules.

On the other hand, if the court says only that the FCC had no grounds to enforce a mere policy statement, that ruling would still leave the agency free to draft regulations governing Internet service providers.

The decision isn't expected for several months, but the FCC intends to carry on with its efforts to craft new rules in the meantime. FCC Chair Julius Genachowski said in a statement today that he "remain[s] confident the commission possesses the legal authority it needs" to proceed with a rulemaking.

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