A federal court Tuesday cast a blow against the FCC's net neutrality policy by ruling that the FCC has no jurisdiction over Internet service providers and can not enforce traffic-throttling policies as a way to regulate network traffic.
In a 3-0 decision, the U.S. Court of Appeals for the District of Columbia ruled that the FCC lacked the authority to require Comcast to treat all Internet traffic equally on its network. The court thereby vacated the FCC's 2008 order that Comcast stop hampering BitTorrent (a peer-to-peer networking service) as a traffic-management practice.
"Today's court decision invalidated the prior Commission's approach to preserving an open Internet," said FCC spokesperson Jen Howard. "But 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."
Key to the decision was the judges' focus on whether the FCC actually has authority over broadband services, which are categorized separately from phone, cable television and wireless services. The judges ruled that the FCC has only "ancillary authority" and, "The Commission may exercise this 'ancillary' authority only if it demonstrates that its action ... is 'reasonably ancillary to the ... effective performance of its statutorily mandated responsibilities.' The Commission has failed to make that showing."
Some, such as Barbara Esbin, senior fellow at The Progress & Freedom Foundation, applauded the decision. Esbin's group lobbies against increased government regulation in areas concerning technology.
"As I have said from the outset, the FCC's action against Comcast's Internet network management practices was unlawful because Congress has not delegated to the FCC regulatory authority over the provision of Internet services, and the FCC may not self-generate such authority through creative use of the doctrine of implied or "ancillary jurisdiction." she said in a statement. "The court's decision rests on the foundational principles that the FCC's regulatory authority is not unbounded, the agency is not free to make it up as it goes along and the FCC possess no plenary authority to regulate an Internet service provider's network management practices."