Enforcement of Net Neutrality Not Within the FCC's Scope of Authority, Says U.S. Court of Appeals

By Jeffrey A. Cohen
and Vanessa Pfaff
April 7, 2010

The U.S. Court of Appeals threw out the Federal Communications Commission’s 2008 cease and desist order against Comcast on Tuesday, thereby ruling that the FCC does not have the legal authority to enforce Net neutrality regulations on Internet providers.

In August 2008, as a part of their effort to regulate providers and promote Net neutrality, the FCC issued a cease and desist order to stop broadband provider Comcast from favoring certain sites and services over others.  Specifically, the FCC order was aimed at Comcast’s 2007 interference with BitTorrent, an online file-sharing service.  Comcast had attempted to control BitTorrent’s access to bandwidth, claiming that BitTorrent’s subscribers were using too much bandwidth and subsequently were slowing Internet traffic.  The FCC stepped in to prevent Comcast from interfering with the FCC’s Net neutrality policies, doing so by issuing an order forbidding Comcast from blocking these subscribers’ use of bandwidth.

Comcast complied with the order, but then responded by suing the FCC, arguing that the FCC’s order was illegal and that the FCC lacked the authority to enforce such an order in the broadband sector, which had been deregulated by law under President George W. Bush.  The FCC maintained, however, that it had the authority under existing law to set certain rules for information services, such as broadband, and that these rules could include Net neutrality rules. 

On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC had no such authority to enforce this policy, rejecting the FCC’S reasoning and making future litigation in this area likely.

This ruling has placed a roadblock in front of the FCC’s pending initiative to draft formal Net neutrality rules, which it announced last October.  According to the FCC, whose policies are committed to promoting open and affordable broadband to all of the U.S., such rules are necessary to prevent phone and cable companies from restricting online access to users.
The Court stated that the FCC’s regulatory behavior was not backed by Congressional law and that the FCC did not have the power to regulate the neutrality of Internet providers.  Judge David Tatel’s Opinion on Petition for Review of an Order of the FCC of April 6, 2010, states that the FCC does not have “authority to regulate an Internet service provider’s network management practices” unless “it demonstrates that its action…is reasonably ancillary to the…effective performance of its statutorily mandated responsibilities.”  In this case, the Court has ruled that the FCC’s cease and desist order is does not meet such qualification and is outside the FCC’s legal authority.

This ruling also has an effect on some of the other plans that the FCC has, such as its National Broadband Plan, which it announced last month.  This plan, headed by FCC Chairman Julius Genachowski, is intended to make high-speed Internet widely accessible and affordable across the U.S.  Actions through which the FCC assumes some level of regulatory power now appear to be under the threat of litigation.

Although this decision has implications on the FCC’s ability to control and enforce Net neutrality, the Opinion issued by Judge Tatel did not contain any assessment of the importance of Net neutrality as a policy.  Neither did the Opinion express any judgment or acquittal of Comcast’s interference with broadband use.  The ruling was specific to this case, but still set a precedent for future FCC regulation disputes.  The Court has found Net neutrality, in this instance, to be unenforceable, at least by the FCC.