Court Rules FCC Lacks Authority to Regulate Net Neutrality

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By Gordon Flagg

A federal appeals court ruled April 6 that the Federal Communications Commission does not have the authority to require network providers to give equal treatment to the sites or applications to which they provide access.

U.S. Court of Appeals for the District of Columbia overturned a 2008 ruling by the FCC ordering Comcast to stop blocking its broadband subscribers from using the BitTorrent online file-sharing technology and other applications. The court’s decision (PDF file) said that because the FCC “has failed to tie its assertion of ancillary authority over Comcast’s Internet service” to any ‘statutorily mandated responsibility,’” the agency lacked jurisdiction over its network management practices.

The ruling is a likely deathblow to the rules proposed last October by FCC Chairman Julius Genachowski to ensure “net neutrality” by preventing internet service providers from blocking or slowing web traffic over their networks. The New York Times noted April 6 that it also could raise obstacles to the massive national broadband plan released by the Obama administration last month and other efforts to increase Americans’ access to high-speed internet networks.

FCC spokesperson Jen Howard said that while the court decision invalidated the commission’s approach, “the court in no way disagreed with the importance of preserving a free and open internet; nor did it close the door to other methods for achieving this important end.”

While she found the ruling “disappointing,” Corey D. Williams, associate director of the American Library Association’s Office of Government Relations, said ALA “will continue to vigorously advocate for enforceable net neutrality principles. Without net neutrality, one could easily imagine a world in which entertainment content would be routed in the information superhighway ‘fast lane,’ bypassing education or other types of content—all unbeknownst to users. True network neutrality and transparency of how information and content is routed is critical to upholding equal access to information, and ALA will continue to champion unfettered, equal access to all types of information on behalf of our members and the public.”

Markham Erickson, executive director of the Open Internet Coalition, an organization that includes ALA, the Association of Research Libraries, and American Association of Law Libraries, said the ruling “creates a dangerous situation, one where the health and openness of broadband internet is being held hostage by the behavior of the major telco and cable providers.” She added that the “sweeping decision” removing the FCC’s authority to regulate the internet under Title I of the Communications Act has given the agency “no option but to immediately open a proceeding to clarify its authority over broadband network providers under Title II.”

American Libraries, Wed, 04/07/2010 - 09:42