Court: FCC has no power to regulate Net neutrality

Source: CNET.com

The Federal Communications Commission does not have the legal authority to slap Net neutrality regulations on Internet providers, a federal appeals court ruled Tuesday.

A three-judge panel in Washington, D.C. unanimously tossed out the FCC's August 2008 cease and desist order against Comcast, which had taken measures to slow BitTorrent transfers before voluntarily ending them earlier that year.

Because the FCC "has failed to tie its assertion" of regulatory authority to an actual law enacted by Congress, the agency does not have the power to regulate an Internet provider's network management practices, wrote Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit.

Tuesday's decision could doom one of the signature initiatives of FCC Chairman Julius Genachowski, a Democrat. Last October, Genachowski announced plans to begin drafting a formal set of Net neutrality rules--even though Congress has not given the agency permission to do so. That push is opposed by Verizon and other broadband providers.

Comcast welcomed the ruling in a statement that said: "Our primary goal was always to clear our name and reputation." The National Cable and Telecommunications Association, the cable industry's lobby group, elaborated by saying that Comcast and its other members will "continue to embrace a free and open Internet as the right policy."

Supporters of Net neutrality claim that new Internet regulations or laws are necessary to prevent broadband providers from restricting content or prioritizing one type of traffic over another. Broadband providers and many conservative and free-market groups, on the other hand, say that some of the proposed regulations would choke off new innovations and could even require awarding e-mail spam and telemedicine the identical priorities.

Net neutrality proponents responded to Tuesday's ruling by saying the FCC should slap landline-style regulations on Internet providers, which could involve price regulation, service quality controls, and technological mandates. The agency "should immediately start a proceeding bringing Internet access service back under some common carrier regulation," Public Knowledge's Gigi Sohn said. The Media Access Project said, without mentioning common carrier regulations directly, that the FCC must have the "ability to protect the rights of Internet users to access lawful content and services of their choice."

In a statement on Tuesday, the FCC indicated that it was thinking along the same lines. The DC Circuit did not "close the door to other methods for achieving this important end," the agency said. A spokeswoman declined to elaborate.

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