The FCC is getting support from network neutrality fans on
Capitol Hill and elsewhere in Washington
after Tuesday's (Apr. 6) D.C. Court of Appeals ruling that calls some of the
commission's authority into question.
The FCC will likely need clear authority if it is to help
implement the national broadband plan, and certainly in its effort to codify
and expand the network neutrality guidelines it used to find Comcast wanting in
its network management of BitTorrent.
"Clearly, the court's decision must not be the final word on
this vitally important matter, and I intend to work vigorously to ensure an
open Internet for generations to come," said Rep. Ed Markey (D-Mass.), who has
proposed network neutrality legislation,
Markey said what the court had done was "[throw] out the
previous commission's shoddy legal theories." Though the court also threw out the
justifications provided for those theories by the current commission's
attorneys. "In light of the court's ruling," he said, "I encourage
the current commission to take any actions necessary to ensure that consumers
and competition are protected on the Internet. It is important to note that the
Court neither called into question the wisdom of network neutrality policies
nor did it exonerate Comcast for its unreasonable interference with lawful
consumer Internet use."
The court confined its decision to the issue of jurisdiction
over network management practices; a jurisdiction it said the FCC failed to
justify under broad ancillary authority.
"We are now at a crucial crossroads - do we preserve the
historic openness of the Internet, which has made it the most successful
communications medium of all time, or do we enable Comcast and other
communications colossi to erect fast lanes and slow lanes that stifle the
ingenuity and investment that have characterized the Internet since its
inception?"
Free Press, which was one of those taking issue with
Comcast's impeding of BitTorrent uploads, said the court decision has forced
the FCC into an "existential crisis" that leaves it unable to protect
consumers. In a statement, Free Press Research Director Derek Turner said that
while this FCC did not create the existential crisis, it now has no choice but
to face these tough jurisdictional questions head on, and do what is necessary
to protect consumers and promote competition."
Free Press has suggested that if the court did vacate the
BitTorrent decision, the commission might have to reclassify some part of
Internet access as a Title II telecommunications service subject to mandatory
access regulations, rather than a more lightly-regulated information
service--its current Title I classification--that does not subject it to access
or rate regulations.
Sen. John Kerry (D-Mass.), who chairs the Senate
Communications Subcommittee, said he was not advocating the FCC reclassify
broadband service, but he did almost everything but. "I absolutely believe
they maintain that legal authority and it would be entirely consistent with the
history of communications law in our country if they did," Kerry said in a
statement. In fact, in cases involving FCC classification of services,
the Supreme Court has always deferred to the agency. It is likely to
continue doing so if the agency reversed and provided a strong rationale for
updating the Bush era classification of broadband service."
And if the FCC can't find a way to reclassify it, Kerry
suggested he would help come up with some other way to make its authority over
the Internet clear. "In the long run, we may need a new legal and
regulatory framework for broadband, especially if reclassifying broadband as a
telecommunications service proves too difficult to administer," he said.
"I am willing to work with all interested parties on the construction of
that framework."
