In 2008, the Federal Communications Commission ruled that Internet giant Comcast violated the agency's Net neutrality principles when it "throttled" peer-to-peer traffic from sites like BitTorrent and that it had misled customers by not adequately explaining its peer-to-peer traffic policies. Not surprisingly, Comcast appealed the ruling.
eWEEK reports that this week the Progress and Freedom Foundation filed a brief in support of Comcast's appeal. But instead of arguing that Comcast did not violate the Net neutrality principles, the group argues that the FCC has no authority to enforce those principles. eWEEK quotes the brief this way:
Congress has not in fact delegated to the FCC any express authority to regulate Internet services. If it had, there would be no need for the Commission to strain the principle of ancillary jurisdiction to support its order. And its assertion of ancillary jurisdiction is untenable, exceeding any previously recognized scope and boundaries.
The FCC, however, points to the Communications Act as the source of its jurisdiction to enforce Net neutrality principles.
It's an interesting argument, but it appears to be moot. Or at least it will be moot. If the court overturns the FCC's ruling against Comcast, Congress is already poised to pass the Internet Freedom Preservation Act, which would make Net neutrality federal law.