Court strikes down FCC’s Comcast net neutrality order

A federal appeals court has struck down the Federal Communications Commission’s rebuke of Comcast in a 2008 net neutrality proceeding, ruling that the agency acted outside its authority and casting doubt over its ability to act on several components of its broadband agenda.

In a 3-0 decision, the judges determined that the FCC was wrong to enforce a 2005 policy statement as a set of binding rules, concluding that the commission’s “ancillary authority,” or authority inferred — but not expressly stated — in statute, did not give it the power to punish Comcast for blocking transfers of files over peer-to-peer networks.

“The Commission may exercise this ‘ancillary’ authority only if it demonstrates that its action — here barring Comcast from interfering with its customers’ use of peer-to-peer networking
applications — is ‘reasonably ancillary to the … effective performance of its statutorily mandated responsibilities,'” Judge David Tatel wrote in the court’s ruling. “The Commission has failed to make that showing.”

The court’s ruling comes as the FCC has an open proceeding that would upgrade the policy statement in question to enforceable rules, giving the commission clearer authority to bar Internet service providers from playing favorites with content on their networks.

The court’s requirement that the commission vacate its order against Comcast comes as a victory for net neutrality opponents and those who argue against any efforts at the FCC to enact new regulations in the Internet sector.

The commission could appeal the decision of the U.S. Court of Appeals for the D.C. Circuit to the Supreme Court, though it’s far from certain that the high court would agree to hear the case.

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