Court limits FCC authority to address “net neutrality”

“Net neutrality” is a phrase commonly applied to the idea that access to the Internet should not be subject to tiered or content-based pricing or download speeds.  Net neutrality supporters advocate that Internet service providers should not promote their own content by blocking, slowing or otherwise interfering with access to content published by their competitors. 

In 2005, the Federal Communications Commission published a Broadband Policy Statement in which the FCC stated that it “has jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet protocol-enabled (IP-related) services are operated in a neutral manner.”  In the statement, the FCC adopted four general principles, including principles that “consumers are entitled to access the lawful Internet content of their choice,” and “consumers are entitled to competition among network providers, application and service providers, and content providers.” 

In a ruling that creates uncertainty for “net neutrality” advocates, the U.S. Court of Appeals for the District of Columbia has called into question the FCC’s jurisdiction to regulate Internet access.  In Comcast v FCC, the Court considered whether applicable laws give the FCC regulatory authority to issue an Order that covered Comcast’s Internet management practices governing users’ access to peer-to-peer file sharing.  The Court concluded that the FCC had no such authority. 

The ruling casts doubts on whether the FCC can proceed with regulations that it proposed in October 2009 governing network neutrality.  However, since the ruling, several sources have quoted members of Congress who stated legislative action to expressly grant the FCC authority to regulate Internet service providers is under consideration.

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