Court to FCC: There are Limits to Your Power

A federal appeals court — second only to the U.S. Supreme Court in its legal influence — looks to have put a stop to the desire of the Federal Communications Commission to exert its control over the Internet via the Trojan horse of net neutrality rules.

As reported by Big Government’s Capitol Confidential, and also at InfoTech & Telecom News, the United States Circuit Court for the District of Columbia ruled Tuesday that the FCC does not have the inherent authority to regulate the Internet, but must seek such power from Congress. That was the clear message of the court as it sided with Comcast in its long-running dispute with the FCC over the company’s network management practices. From ITTN:

The decision made it clear that the FCC has no authority to force Comcast to stop managing its broadband network as it sees fit–in this case by throttling back the speed of a relative handful of “bandwidth hogs” who use bitTorrent programs to share enormous files. Comcast said it throttled the “hogs” to ensure speedy service for the majority of its customers in 2007, but no longer does so. …

Commonly referred to as Comcast v. FCC, the ruling stated that the FCC’s “ancillary authority” over the broadcast and cable industries “is not the equivalent of untrammeled freedom to regulate activities” on the Internet, too. …

“Instead, the court begins and ends by dismantling the brief of the FCC, rejecting every effort to tie the Commission’s ‘ancillary jurisdiction’ to something–anything!–in the Communications Act that could justify the sanctions.”

Larry Downes, a fellow with the Stanford Law School Center for Internet & Society, notes that the decision can only be seen as a thorough knock-down of the FCC’s position, because “there is not a single reference to any arguments made by Comcast.”

Downes is right. It’s hard to read this decision as anything less than a complete repudiation of the FCC’s attempted power-grab over the Internet. Lefty groups who have been urging strict regulation of the Internet, such as Public Knowledge and Free Press, are quite despondent today — with the latter outfit plainly urging the FCC to ignore the ruling and “re-establish [its] legal authority.” As Capitol Confidential notes, that would entail the FCC reclassifying Internet service providers (ISPs), currently considered a lightly regulated “information service,” under the commission’s much-stricter “Title II” authority. But such a move would also be subject to the legal argument Comcast won here: The FCC would need explicit Congressional authority to do that.

The Freedom Pub has a good run-down of reaction from the right — those who truly value our liberties on the Internet and understand they must be protected from the government, not protected by the government. Here’s a taste:

Carl Gipson at the Washington Policy Center:

This should put a huge dent in the plans of FCC Chairman Julius Genochowski to issue Net Neutrality rules — which is good seeing as how Congress has yet to actually order him to do so. The ball is basically back in Congress’ court. If Net Neutrality backers want the FCC to implement such regulations, Congress is going to have to sign off first.

Jim Harper at the Cato Institute:

The court’s decision marks another turning point in the debate over whether the federal government should regulate Internet access services. What’s entertaining about it is that the problem was solved two years ago by market processes–sophisticated Internet users, a watchdog press, advocacy groups, and interested consumers communicating with one another over the Internet.

Adam Thierer at The Progress & Freedom Foundation:

The question now is whether the FCC learns its lesson — that it should seek the proper authority from Congress to impose new regulations like Net neutrality rules — or if the agency instead engages in another effort to concoct regulatory authority via regulatory classification.

And here’s my statement, wearing my hat as co-director on the Center for the Digital Economy at The Heartland Institute.

This decision firmly slaps the hand of a federal agency that has been trying to grab new regulatory powers in the name of net neutrality that are well beyond its congressional mandate. In doing so, the court struck a blow on behalf of advocates of limited government and the idea that specific legislation, not arbitrary regulation, should be the law of the land.

The court correctly ruled that the FCC’s “ancillary authority” over the broadcast and cable industries ‘is not the equivalent of untrammeled freedom to regulate activities’ on the Internet, too. Consumers dodged a bullet here, as a decision ratifying the FCC’s power-grab would have stifled investment and strangled the vibrant broadband market.

I’m worried, however, that the FCC will ignore the clear instructions of the court and attempt to cram broadband into an ill-fitting Title II regulatory structure without first getting authority from Congress. It is probably tempting for the FCC to do so because Congress seems reluctant to explicitly grant the commission the power to enforce strict net neutrality rules.

FCC Chairman Julius Genachowski has said he wants the FCC to be the “cop on the beat” in the digital economy. But this decision by the DC Circuit makes it clear that he has to first go to Congress to get his badge.

This is a good day, when a victory was won for those who want to keep the government’s hands off our Internet.