Court May Be Leaning in Comcast's Favor in FCC Appeal

Lora Bentley
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Why All the Hype Over Net Neutrality?

Learn what net neutrality is all about and why it's so important.

Remember when the Federal Communications Commission first released its proposed net neutrality rules and critics were questioning whether the agency even had the authority to enforce them? Remember the FCC's determination last year against cable and Internet service provider Comcast? The agency determined that the company could not block peer-to-peer applications and had to publicly disclose its traffic-management practices.


In September, Comcast appealed the ruling, arguing that the FCC had overstepped its bounds in issuing the decision because it could not cite specific rules that Comcast had violated by blocking certain types of content. On Friday, The Wall Street Journal reported the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that heard oral argument on the issues seemed less than convinced that the FCC's argument -- that it was "enforcing an open Internet policy implicit in the law" -- will hold water.


Judge A Raymond Randolph indicated relying on a policy is not the same as relying on a statute or a rule. "You have yet to identify a specific statute," he reportedly told FCC general counsel Austin Schlick.


A ruling in Comcast's favor on this issue could seriously impede FCC Chairman Julius Genachowski's efforts to adopt and enforce net neutrality rules. On the other hand, WSJ writer Fawn Johnson says, a decision in the FCC's favor here could "give the FCC a green light to pursue [the president's] top tech priority."


And believe it or not, there is a third alternative. If the court decides the FCC violated proper procedure in failing to give Comcast enough notice before issuing its order, Comcast would have relief, but the FCC would still be free to pursue net neutrality rule-making.

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