Court Strikes Down FCC Ruling on Comcast - Page 2

By Kenneth Corbin | Posted Apr 6, 2010
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In vacating the order, the court pinned the reasoning for its decision on Comcast's jurisdictional argument, and did not address the company's procedural or due process complaints.

The FCC's legal options are slim. The commission could take an appeal to the Supreme Court, as Schlick suggested, or it could ask the full D.C. Circuit Court to hear the case, though Stifel Nicolas analyst Rebecca Arbogast said that neither scenario would be likely to overturn the decision the court handed down today.

Freeing broadband providers from FCC regulation?

"Today's ruling is destabilizing as it could effectively free broadband providers from FCC regulation over broadband, including net neutrality, rules requiring transparency letting customers know what actual speeds they are receiving, the ability to prioritize emergency communications [and] consumer privacy protections (though these could presumably be imposed to a certain degree by the FTC)," Arbogast wrote in a research note.

The FCC could continue to press on with its current net neutrality proceeding, though even if it succeeds in enacting rules, it will almost certainly face legal challenges from a host of industry interests that will be emboldened by today's ruling.

Those murky and litigious scenarios have left advocacy groups that campaign for net neutrality in despair, with several expressing concern that today's ruling effectively strips the FCC of any authority to enact meaningful broadband policies.

They have called for the FCC to shift broadband Internet to a Title II service under the Communications Act, a move that would clarify the commission's authority in situations like the Comcast incident, but would encounter a torrent of opposition from ISPs. Some lawmakers have echoed those calls, and suggested that it's time for Congress to step in and strengthen the FCC's authority to enforce net neutrality and other broadband regulations.

Conversely, right-leaning groups have seized on the court's ruling as proof positive that the commission lacks the authority to proceed with its proposed net neutrality rulemaking without congressional action.

Sen. Kay Bailey Hutchison, the ranking Republican on the commerce committee and an ardent opponent of net neutrality rules, called on FCC Chairman Julius Genachowski to abandon the open Internet rulemaking.

"In light of this important court decision, policy makers should assess whether there should be any regulatory role for the agency as it relates to the Internet and how private companies manage their investment," Hutchison said in a statement. "It would be wrong to double down on excessive and burdensome regulations, and I hope the FCC chairman will now reconsider his decision to pursue expanded commission authority over broadband services in current proceedings before the agency."

Broadband providers say ruling won't affect Internet users

For their part, some broadband providers are trying to position today's ruling as an isolated response to a singular misstep by the FCC, arguing that it is hardly the dramatic rewrite of commission authority that the net neutrality set is claiming.

"The court correctly ruled that a specific order by the previous FCC was wrong," Kyle McSlarrow, president and CEO of the National Cable and Telecommunications Association, said in a statement. "We cannot state strongly enough that this decision will change nothing about the cable industry's longstanding commitment to provide consumers the best possible broadband experience. Nor does the ruling alter the government’s current ability to protect consumers."

Verizon made a similar statement, declaring that today's ruling "will have no impact on the experience of Internet users," and noting that the court did not argue in its ruling that the FCC has no ancillary authority over Title I broadband providers, only that it overstepped in the Comcast case.

It is worth noting that Verizon has recently called on Congress to update the Communications Act, a move that Arbogast sees as an effort "to try to head off a possible FCC move to Title II regulation," which could be the next policy war after today's ruling.

"Bottom line, although today's decision is an immediate victory for broadband providers, they may have won the battle only to face a larger war," she said.

Kenneth Corbin is an associate editor at, the news service of, the network for technology professionals.

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