A federal appeals court threw a major roadblock into the Federal Communications Commission’s Net neutrality plans as well as its broader National Broadband Plan, ruling that the agency lacks the authority to regulate the Internet.A three-judge panel in Washington said that while Congress gave the FCC broad and adaptable power to keep pace with evolving technology, it needs, and lacks, express authorization from Congress to interfere with the management of broadband by the providers.
While the decision was not specifically aimed at the Net neutrality policy, the FCC agrees that the reasoning applies to it, conceding that it invalidates its “approach to preserving an open Internet.”
“Nobody knows if there are any protections left on broadband services for consumers or industry for that matter,” said Maura Corbett, a partner at Qorvis Communications who has worked for Net neutrality advocates.
And it’s possible that the FCC is now powerless to implement the National Broadband Plan the administration rolled out to great fanfare last month promising to chart the next decade of Internet development, Corbett said.
The FCC’s limbo could be resolved in three ways, all of which come with distinct downsides, she said. Congress could grant the FCC the needed authority, but lawmakers have shown little appetite to take on another contentious issue in a year already packed with controversy. The commission could appeal the decision, which is unlikely because there is little chance of success. Or officials could try to tweak existing regulations, which is the practice the court knocked down today.
“In the meantime,” Corbett said, “there is nothing they can do.”
The unanimous ruling, written by Judge David Tatel, places the courts squarely in the middle of the heavily lobbied controversy over whether the FCC can tell providers of broadband services, such as Comcast, that they must treat all content providers equally, thereby preventing them from saying who gets slower or faster service, for example.
Among those providers are companies such as Google, Amazon, Facebook and Twitter.
The FCC did not immediately say whether it would appeal to the full circuit court and then possibly to the Supreme Court. In a statement, the FCC said it is “firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans.
“Today’s court decision,” said the agency statement, “invalidated the prior commission’s approach to preserving an open Internet. 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.”
Those other methods, though unspecified, could include attempting a new set of regulations, bound to be intensely controversial, or seeking explicit legislation.
Tatel’s opinion took the FCC to task for relying on “policy statements” from Congress and elsewhere to support its power over the Internet. “Policy statements,” wrote Tatel, “are just that – statements of policy. “They are not delegations of regulatory authority. ”
In a written statement, Barbara Esbin, senior fellow at the the Progress and Freedom Foundation, which is supported by companies such as AT&T, Time Warner Cable and the Broadband Association, praised the ruling, saying it destroyed the legal basis for the FCC’s proposed “open Internet” or Net neutrality rules.
Esbin, who submitted a friend of the court brief in support of Comcast in the case, said the decision “strongly suggests that the time has come for our elected representatives to take up the question of whether and how the FCC should regulate the provision of Internet services.”
S. Derek Turner, research director for Free Press, which took the opposite side in the case, said that “the decision has forced the FCC into an existential crisis, leaving the agency unable to protect consumers in the broadband marketplace and unable to implement the National Broadband Plan.
“As a result of this decision, the FCC has virtually no power to stop Comcast from blocking websites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. This cannot be an acceptable outcome for the American public and requires immediate FCC action to re-establish legal authority.”
Gigi B. Sohn, president and co-founder of Public Knowledge, said in a statement that the decision “means there are no protections in the law for consumers’ broadband services. Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others.”
“In addition, as of now, the Federal Communications Commission’s ambitious National Broadband Plan to help boost the economy is in legal limbo. The ability of the FCC to support broadband through universal service is in jeopardy, as is the agency’s ability to protect consumer privacy, ensure access to broadband-based emergency communications or promote access to broadband for the disabled. In our view, the FCC needs to move quickly and decisively to make sure that consumers are not left at the mercy of telephone and cable companies.”
The case itself stemmed from a suit bought by Comcast Internet subscribers who discovered that the company was interfering with peer-to-peer applications – which allow the sharing of large files over the Web and consume large amounts of broadband.
Free Press and another advocacy organization, Public Knowledge, joined with a coalition of public interest groups to challenge Comcast’s actions. The FCC ordered Comcast to stop its interference. Comcast then went to court, arguing that the agency did not have sufficient powers under existing laws and policy to set rules for the Internet.
In a statement, Comcast Vice President of Government Communications Sena Fitzmaurice said the company was “gratified” by the decision and “remains committed to the FCC’s existing open Internet principles. …We will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.”
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