D.C. Circuit Court of Appeals’ Comcast/BitTorrent Decision is Out [UPDATED]

The D.C. Circuit Court of Appeals' decision in the Comcast/BitTorrent case was just released and is available here.

Pardon the many changes to this post, PK staff are all still reading and analyzing the decision but here are some of our initial thoughts — check back in a bit for our full analysis and response:

The Court has called into question the FCC's authority to regulate broadband Internet access without advancing a new complex theory of ancillary authority for anything it wants to do regarding broadband. Most importantly, it threw out the FCC's ancillary authority arguments in this case and made it clear that the Commission can never assert general authority over broadband Internet access, as long as it remains under Title I. Theoretically, the FCC can come up with complex arguments to justify any particular order.

We're going to explain this more in a later blog post — stay tuned!

The FCC brought this upon itself when it decided to regulate cable broadband Internet under Title I and removed other broadband services (like DSL) from Title II and moved them into Title I.

As you'll recall, we've recommended putting broadband back under traditional common carrier regulation, albeit a streamlined version that emphasizes non-discrimination.

Here's the summary part of the ruling:

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In this case we must decide whether the Federal Communications Commission has authority to regulate an Internet service provider’s network management practices. Acknowledging that it has no express statutory authority over such practices, the Commission relies on section 4(i) of the Communications Act of 1934, which authorizes the Commission to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i). 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.” Am. Library Ass’n v. FCC, 406 F.3d 689, 692 (D.C. Cir. 2005).

The Commission has failed to make that showing. It relies principally on several Congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create “statutorily mandated responsibilities.” The Commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast’s network management practices. We therefore grant Comcast’s petition for review and vacate the challenged order.

The Latest