In a ruling that could derail the Federal Communications Commission's attempt to craft net neutrality rules, a federal appeals court said Tuesday that the agency lacked authority to sanction Comcast for throttling peer-to-peer traffic.
The U.S. Court of Appeals for the District of Columbia Circuit ruled 3-0 that a 2002 FCC decision to reclassify broadband as an "information" service from a "telecommunications" service largely left the agency without jurisdiction to regulate the Web.
The FCC had argued that it has so-called ancillary jurisdiction over information services like broadband, but the court rejected that approach, ruling that neither Congress nor prior court rulings "support [the FCC's] exercise of ancillary authority over Comcast's network management practices."
The ruling vacates the FCC's 2008 order directing Comcast to refrain from slowing down BitTorrent traffic. The FCC had ruled that Comcast's traffic-shaping policies violated the agency's Internet policy statement, which provides that consumers are entitled to access all lawful material of their choice online.
Comcast, which moved to a protocol-neutral traffic management system in 2008, has no plans to shift away from that system, spokesperson Sena Fitzmaurice told Online Media Daily.
She also said in a statement that Comcast is committed to neutrality principles. "Our primary goal was always to clear our name and reputation," she stated, adding that the company will "continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet."
Broadband advocates who had urged the FCC to take action against Comcast condemned the appellate ruling, saying that it could prevent the commission from enacting any regulations that could affect how broadband is delivered.
"The consequences of this decision go well beyond net neutrality and well beyond the matter at hand," says S. Derek Turner, research director at Free Press. The ruling, he says, "has left the agency unable to protect consumers in the marketplace."
FCC spokesperson Jen Howard said in a statement that the commission "is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans."
The FCC's next move is unclear, but some advocates are urging it to reclassify broadband as a "telecommunications" service, in which case Internet service providers would be bound by common carrier rules that generally prohibit discrimination.
Even before Tuesday's decision was issued, advocacy group Public Knowledge asked the FCC to reclassify broadband as a telecommunications service.
Marvin Ammori, the lawyer who argued the case on behalf of Free Press, says that the commission can change broadband's classification as long as it has a "reasoned basis" for doing so.
But any attempt by the FCC to treat broadband as a telecommunications service will almost certainly be met with opposition and court challenges by Internet service providers. In February, a coalition including Verizon, Time Warner and others warned the FCC that any attempt to reclassify broadband "would plunge the industry into years of litigation and regulatory chaos."
Not all consumer advocates are criticizing the appellate court's ruling. The Center for Democracy & Technology said that the decision "raises serious questions" about how to protect people's access to the Web, but also praised the decision for clarifying the limits of the FCC's authority. "This aspect of the ruling may have healthy long-term consequences for the Internet's future," the organization stated.