D.C. Circuit Denies FCC Jurisdiction to Mandate Net Neutrality
By Tyler Lacey – Edited by Jad Mills
Comcast Corp. v FCC, No. 08-1291 (D.C. Cir., Apr. 6, 2010)
The United States Court of Appeals for the District of Columbia Circuit vacated an order issued by the Federal Communications Commission (FCC), which had asserted jurisdiction over Comcast’s network management policies and had ordered Comcast to cease discriminating against peer-to-peer network traffic.
The D.C. Circuit held that the FCC does not have ancillary jurisdiction over Comcast’s Internet service under the language of the Communications Act of 1934, which grants the FCC the power to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with [the Act], as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i). The Court did not find a sufficient statutory basis in the FCC’s mandate to provide “rapid, efficient” communications services to authorize it to regulate the behavior of Internet service providers.
Internet Evolution describes the Court as having “managed to completely destroy the very foundation upon which the FCC has based its net neutrality rules” and questions the necessity of any internet regulation at all. The Wall Street Journal argues that this decision “deal[s] a blow to big Web commerce companies and other proponents of ‘net neutrality.’” However, Wired reports that the FCC remains optimistic that it can still achieve its goal of “preserving an open internet” because the “court in no way disagreed with the importance of preserving a free and open internet [n]or did it close the door to other methods for achieving this important end.” Comcast responded to the Court’s decision by declaring that it “remains committed to the FCC’s existing open Internet principles, and . . . will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.”
In determining the FCC’s lack of ancillary authority to regulate Comcast’s network management policies, the court relied on its two-part test laid out in Am. Library Ass’n v. FCC, which grants such authority when “(1) the Commission’s general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.” Am. Library Ass’n v. FCC, 406 F.3d 689, 691–92 (D.C. Cir. 2005). While the parties agreed that the first prong of the test was met, the Court found that the FCC failed the second prong because it relied on statements of policy which were unable to “anchor the exercise of ancillary authority” instead of relying on statutorily mandated duties. Declarations that “the policy of the United States . . . [is] to promote the continued development of the Internet,” 47 U.S.C. § 230(c)(2), or the FCC’s mandated goal of providing “a rapid, efficient, Nation-wide, and world-wide wire and radio communication service,” 47 U.S.C. § 151, are able to “shed light on any express statutory delegation of authority” but are unable to provide such authority on their own.
This case is significant because it represents a rejection of the FCC’s first attempt to enforce its net neutrality policy. As well, this decision may motivate Congress to provide the FCC with the statutory authority that it now needs to regulate the network management practices of Internet service providers. The court believed that, had it allowed the FCC to proceed with such regulation in the absence of explicit Congressional support, it would have acted to “virtually free the Commission from its congressional tether” and that there would then be few regulations that the FCC would be “be unable to impose upon Internet service providers.”
Tyler Lacey is a 2L at Harvard Law School.