Court Delivers Blow to FCC in Ruling

In a blow to the Federal Communications Commission (FCC) and its Chairman, Julius Genachowski, the U.S. Court of Appeals for the District of Columbia Circuit today ruled against the agency in a case brought by Comcast. At issue in the court action was the question of whether the FCC currently has sufficient authority to regulate broadband services. The Court has now determined that it does not.

Already being interpreted as a major slap in the face to the agency, the ruling could have major implications for how Genachowski proceeds in implementing his vision with regard to broadband policy–a vision that critics charge encompasses heavy-handed, excessive and unnecessary government regulation. As Capitol Confidential has previously reported, Genachowski is a champion of a policy known as “net neutrality,” which is broadly opposed by a coalition of internet service providers (ISPs), communications workers, minority, women’s and artists’ groups, and large numbers of congressional Republicans and Democrats.

The ruling leaves open three options for Genachowski in continuing to push for heightened regulation. First, the FCC can appeal the decision to the Supreme Court. Second, the FCC could urge Congress to rewrite legislation. Third, the FCC could pursue what some observers have dubbed a “sweeping reclassification” of broadband services under an existing set of rules which relate to telephone services.

At present, broadband services are treated as an information service, and regulated relatively lightly. Were the reclassification approach taken, however, that would cease to be the case–and net neutrality would be instituted, albeit indirectly.

Previously, ISPs have urged the FCC not to go this route, should it be rapped on the knuckles by the Court. However, it likely presents Genachowski with a more efficient pathway to achieving his vision with regard to broadband services than would an appeal to the Supreme Court, or Congress pursuing legislation. As Reuters reported over the weekend, “the Supreme Court… might not hear the case or take years to deliver a final ruling.” Telecoms experts meanwhile say that Congress looks unwilling or unable to act.