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Comcast Beats FCC In Throttling Case
DC Court of Appeals overturns FCC order
by Karl Bode 12:08PM Tuesday Apr 06 2010
The FCC and Comcast have been in court fighting over whether the FCC had the right to "sanction" Comcast for lying to customers about throttling P2P services back in 2008 (a debate that actually began right here at Broadband Reports before blowing up into a national discussion). Again, no FCC fine was levied, no new rules were imposed, and Comcast barely saw a wrist slap for lying to consumers and the press multiple times, in both filings and in print, about throttling all customer traffic, 24/7 using user packet forgery.

Comcast ultimately shifted to a clear 250 GB monthly cap and a more intelligent and less blunt force method of targeting network congestion. Still, Comcast never much liked the precedent the FCC's actions set, so Comcast lawyers have spent the last few years trying to argue that the FCC never had the authority to dictate how Comcast manages its network.

The commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any statutorily mandated responsibility.
-U.S. Court of Appeals for the DC Circuit
The FCC found themselves on uncertain legal footing because the rather flimsy network neutrality principles (pdf) created by previous FCC administrations were painfully vague (some might argue intentionally), and didn't technically support the FCC's attempt at extended authority.

Today the Washington DC Court of Appeals ruled in Comcast's favor in the case (you can find the ruling here (pdf)), meaning that the courts believe the FCC lacked the Title 1 authority under the Communications Act of 1934 to tell Comcast what to do. "The commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any statutorily mandated responsibility," stated a three-judge panel of the Court.

Comcast may have been better served leaving things alone. As we mentioned recently, part of the reason the FCC's broadband plan was so vague is because the agency was waiting on this ruling to see precisely where they stand legally. It's widely expected that the FCC will now try to reclassify broadband services as Title 2 common carriage, giving them broader authority over broadband providers. That's going to mean additional legal and political battles not only with Comcast, but with carriers like AT&T and Verizon.

While it's certainly very clear that companies like Comcast, AT&T and Verizon would prefer an FCC that has absolutely no power over them, that's obviously not something that's going to go over well with most consumers, consumer advocates, or the FCC. This is only the very beginning of a much broader fight.

Update: We're of course asking around for comment from all parties involved. Comcast says their lawyers are still studying the ruling and they'll have a statement for us shortly. Derek Turner, Research Director for consumer advocacy firm Free Press, has this to say about the ruling:
"The consequences of this decision go well beyond the matter of Comcast's application blocking. Today's decision has forced the FCC into an existential crisis, leaving the agency unable to protect consumers in the broadband marketplace and unable to implement the National Broadband Plan.

"This crisis is not a result of a weak Congressional law, but a direct consequence of the previous two Commission's misguided and overzealous attempts to completely deregulate America's communications networks. Past FCC actions created a huge loophole in the law that leaves the agency unable to protect consumer privacy or promote universal broadband access for low income and disabled consumers. FCC Chairman Genachowski must act quickly to close this loophole, for if he does not, the FCC will simply lack the authority to oversee the policies needed to reach all of the noble goals in the National Broadband Plan.

"This is not an acceptable outcome for the American public. The FCC must have the statutory authority to carry out its consumer protection and public interest mission in the 21st century broadband marketplace. This FCC did not create this existential crisis, but 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."
Update:The FCC released the following statement:
"The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies -- all of which will be designed to foster innovation and investment while protecting and empowering consumers -- on a solid legal foundation. Today's court decision invalidated the prior Commission's approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end."
Meanwhile, Comcast also issued a statement:
"We are gratified by the Court's decision today to vacate the previous FCC's order. Our primary goal was always to clear our name and reputation. We have always been focused on serving our customers and delivering the quality open-Internet experience consumers want. Comcast remains committed to the FCC's existing open Internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet."

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Digital Plumber
Minneapolis, MN

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reply to k1ll3rdr4g0n

Re: And then there were none...

said by k1ll3rdr4g0n:

From this this ruling, it sends a clear message to ALL ISPs that they can lie to their user base and get away with it.
No, they can't.

The FCC is just the wrong government department to be creating/enforcing consumer protection laws. These cases can be handled by states Attorney Generals much more effectively than by the FCC.

It was the State of Florida that got Comcast to disclose their cap and procedure for ejecting "abusive" customers from the network: »Comcast Pays Florida $150K For Misleading Consumers

It was the State of New York that went after Verizon for imposing caps on its "unlimited" mobile data service: »Verizon Busted For 'Unlimited' Marketing

All this ruling does is restrict a certain government organization from overstepping its boundary.