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FCC’s “Net Neutrality” Shot Down by Appellate Court

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Photo by Jason Walton on Flickr

The United States Court of Appeals for the District of Columbia Circuit has struck down a Federal Communications Commission (FCC) order to Comcast requiring so-called “net neutrality,” the equal treatment of all Internet content by service providers.

Comcast had asked the court to review the order because, it argued, the FCC lacked the authority to demand that it engage in such net neutrality. The case arose after the FCC discovered Comcast was slowing access to BitTorrent, a popular peer file-sharing service; Comcast insisted their action was necessary in order to prohibit some users from eating up so much network capacity that other users’ experiences suffered.

The real problem with allowing service providers to slow down certain sites or services, proponents of net neutrality say, is that providers could penalize those that compete with their own companies. Google and Skype both favor net neutrality.

The FCC admitted it didn’t have explicit authority over such behavior, but it relied on part of the Communications Act of 1934 to make its case. Section 4(i) gives the FCC the authority to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”

The court, though, didn’t buy this “ancillary jurisdiction” argument, and that, many argue, is the most important aspect of this decision (especially as Comcast has already stopped slowing access to BitTorrent).

The FCC is currently seeking to officially adopt net neutrality rules and also to institute a national broadband expansion plan; the authority for both of these actions would have to come under the “ancillary jurisdiction” principle as the FCC currently has no explicit authority over the Internet.

On the other hand, such explicit authority could come from Congress, which is probably where we’ll hear from next on this issue.

For more information, see The New York Times’ Court Says F.C.C. Cannot Require ‘Net Neutrality.’

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April 7th, 2010 at 11:18 am