D.C. Circuit

D.C. Circuit Quietly Ruins the Internet for Everybody

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This morning, a friend texted me, “You should do a post on D.C. destroying net neutrality.” In my best Arnold Drummond text/voice, I responded “What the f*** are you talking about, [Friend]?” See, in my world, the courts are here to help us — not to come into my home and place of business like the Visigoths hell bent on destroying the civilized world just because they can.

But my friend was right. For reasons passing understanding, the D.C. Circuit decided that today was a good day to try to ruin the internet. The New York Times reports:

A federal appeals court has ruled that the Federal Communications Commission lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.

Tuesday’s ruling by the United States Court of Appeals for the District of Columbia is a big victory for the Comcast Corporation, the nation’s largest cable company. It had challenged the F.C.C.’s authority to impose so called “net neutrality” obligations.

To paraphrase Morpheus: “SCOTUS, if you’re out there, we could sure use some help right now.”

Depressingly, the federal panel delivered an unanimous blow against ‘net neutrality.’ The WSJ Law Blog puts it this way:

A unanimous three-judge DC Circuit panel ruled the FCC exceeded its authority when it issued the citation, ruling that Congress hadn’t given the FCC the power to regulate an Internet service provider’s network-management practices.

“The commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any statutorily mandated responsibility,” the court said in a 36-page opinion.

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Holy God. If you read the decision, it’s nothing short of a total smackdown of every argument the F.C.C. asserted to gain authority over the cable providers. Check out the opinion’s closing:

It is true that “Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.” Resp’t’s Br. 19. It is also true that “[t]he Internet is such a technology,” id., indeed, “arguably the most important innovation in communications in a generation,” id. at 30. Yet notwithstanding the “difficult regulatory problem of rapid technological change” posed by the communications industry, “the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority.” NARUC II, 533 F.2d at 618 (internal quotation marks and footnote omitted). Because the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility,” Am. Library, 406 F.3d at 692, we grant the petition for review and vacate the Order.

This is not good. Essentially the D.C. Circuit holds that the F.C.C. doesn’t have any authority to regulate how Comcast manages web traffic. That means that in this area, Comcast can do what it wants. That’s terrible news for people who think you should be in control of what you see on the ‘net, not your cable company.

And it’s really not the best news in the world for President Obama. The Hill reports:

The court’s move ultimately doubles as a major roadblock for the FCC, which drafted its comprehensive National Broadband Plan this year under the assumption that it possesses regulatory power over the Internet and the companies that provide users’ access to it. Many of its provisions also include clarion calls for net neutrality, which the agency may no longer have the authority to institute and enforce on its own.

Net neutrality is a top priority for President Barack Obama, who won the allegiance of the tech community during his campaign by promising to support an “open-Internet” regime.

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Still, there might yet be hope for net neutrality advocates that doesn’t involve the Nine stepping in and telling Comcast what to do:

FCC Chairman Juilus Genachowski has indicated he will try to reclassify broadband as a Title II service in the communications statute, which would allow the FCC to enact net neutrality. Currently, broadband is classified as a Title I service, which, according to the court, does not give the FCC the necessary authority.

Title II of the 1996 revamping of the Telecommunications Act is where the F.C.C. finds its authority to regulate broadcast services. Maybe the F.C.C. will have more luck there? If the F.C.C. can turn the Superbowl halftime show into a boob-less retirement party for geriatrics, surely they can stop Comcast from telling me what I can read.

In the meantime, I’m going to go make some “Free My Internet” t-shirts and start organizing the Million Geek March on Washington.

Court Rules Against F.C.C. in ‘Net Neutrality’ Case [New York Times]
DC Circuit Takes Hit at Net Neutrality, Ninja [WSJ Law Blog]
FCC dealt significant blow in net neutrality ruling favoring Comcast [The Hill]

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