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New Media: Net Neutrality Decision

Summary of the DC Circuit Court's decision regarding Net Neutrality
by

Stephen Fiehler

on 14 April 2010

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Transcript of New Media: Net Neutrality Decision

What is Net Neutrality? Comcast v. FCC (2010) DC Circuit Court vacates FCC order mandating that Comcast stop its traffic management practices which were discovered by public interest groups in 2007/2008 Comcast has 3 objections to FCC Order, DC Court only addresses Comcast's objection concerning FCC's lack of jurisdiction over Comcast's network management practices What is ancillary authority? FCC maintains that it has "ancillary authority" over Comcast's traffic management practices American Library Association v. FCC (2005) FCC may only exercise ancillary jurisdiction when:
1. Regulated subject is generally covered under Title 1 of 1996 Telecommunications Act (1934 Comm Act as amended)
2. Regulations are reasonably ancillary to FCC's statutorily mandated responsibilities DC Court defines ancillary jurisdiction in Comcast case as:
"regulation of services otherwise beyond the Commission's authority in order to prevent frustration of a regulatory scheme expressly authorized by statute" Why DC Circuit Court vacates FCC Order Previous cases concerning FCC's ancillary authority dealt with regulations that furthered regulatory goals for other technologies over which it has explicit authority
NCTA v. Brand X (2005) established that broadband Internet service is not covered under FCC's Title II authority
2005 policy statement on which FCC relied cannot substitute for explicit Congressional authority
If the DC Court were to accept FCC's ancillary jurisdiction argument which relies on broad mandates of Title I, not the specific mandates of Titles II, III, and VI, there would be no limit to FCC authority
What now? Formal rulemaking procedure (which is currently ongoing) could reclassify broadband as Title II service or simply solidify FCC's authority to mandate Net Neutrality
Congress could pass law explicitly authorizing/ordering the FCC to mandate Net Neutrality
Congress and Commission might wait for ISP provocation to act
Full transcript