With Comcast Ruling Struck Down, the FCC Has Had Better Days

Carl Weinschenk

The wheels of justice grind slowly, and it will take some time to determine the real world impact is of the decision by the United States District Court for the District of Columbia-which this Daily Kos diarist notes informally is considered the most powerful in the nation after the Supreme Court-against the Federal Communications Commission.

 

The background is fairly simple. In 2008, the FCC fined Comcast for violatings its rules in throttling the BitTorrent file-sharing service the year before. BitTorrent appealed the fine. At the oral arguments in January, experts said that it was apparent that the court had great doubts about the FCC's right to control BitTorrent. The commentary at the time was that the questions from the judges suggested that the FCC would lose the case.

 

The decision was handed down today, and the observers were correct. Comcast won. Decisions such as these do not happen in a vacuum, and the conclusion drawn by experts is that the FCC's ability to push the National Broadband Plan and net neutrality are in question.

 

The next move is up to the FCC. An appeal to the Supreme Court is likely, though news reports of both the oral arguments and the decision make it seem like a long shot before this Supreme Court. Beyond that, there seem to be two possible moves by the FCC and its army or attorneys. One, according to The Washington Post, is to move broadband providers under the set of rules used for telephone companies:

Public interest groups have urged the agency to reclassify broadband services so that they are more concretely under the agency's authority. The FCC has been reluctant to say if it would do so, and a spokesperson didn't immediately respond to a request for comment.

The big ISPs don't want this, and such a move would lead to massive litigation. It seems that a more direct route would be for Congress to provide the FCC with the thing that the DC circuit says it lacks: Explicit authority to regulate broadband. The FCC possesses this authority in relation to phone service, which is why the FCC could move forward easily on broadband if it made the switch and successfully negotiated the legal challenges.

 


The first thing to look for is whether the decision affects the Notice of Proposed Rulemaking on Net Neturality and early work on the National Broadband Plan. The FCC's lawyers could conclude that the ruling sufficiently undercuts its authority and various initiatives could cease. Maybe, however, the experts will see gray areas and conclude that the ruling isn't a death blow to the National Broadband Plan. Perhaps some preparatory work can be done under authority other than that held solely in the now dicey rules. A lot of really smart people will weigh in on this in the coming months, but it is all guesswork-and may be for months to come.



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