After the NCAA championship Monday, one of the sportscasters noted, “Duke won this game [OH YES THEY DID!]; Butler didn’t lose it.” [Also true—awesome game.]
After years of a case dragging through the courts (not unusual, but still), I think we can say something similar about the FCC’s challenge to Comcast on principles of Net Neutrality: the FCC lost this case; Comcast didn’t win it. That is to say, Comcast’s reasons for blocking BitTorrent downloads weren’t just so awesome that the U.S. Court of Appeals for the District of Columbia unanimously declared Comcast the winner—it was Comcast’s claim that the FCC doesn’t currently have the authority to enforce Net Neutrality.
In a major blow for Net Neutrality, the Court of Appeals really did say that the FCC, the federal agency that regulates “all non-federal government use of the radio spectrum (including radio and television broadcasting), and all interstate telecommunications (wire, satellite and cable) as well as all international communications that originate or terminate in the United States,” as Wikipedia says. However, “broadband” isn’t currently defined as “telecommunications.”
The case originally picked up in 2008, with several volleys:
- FCC Stepping in on Net Neutrality?
- Net Neutrality Conference for FCC
- FCC: We Can Enforce Net Neutrality Now
- Comcast Says FCC and Internet Access Principles Don’t Apply To Them
But since then, it’s been mostly a waiting game.
There is, however, still one point of hope for the FCC and Net Neutrality: the court ruled that the FCC “‘has failed to tie its assertion’ of regulatory authority to an actual law enacted by Congress.” So if Congress can enact a law granting the FCC that authority, they can regulate the Internet (However, there have been multiple attempts to do just that, with no success). Alternatively, the FCC could also try to reclassify broadband as “telecommunications,” giving the commission full jurisdiction—but that action would surely be met with legal opposition just like this case.
Meanwhile, Comcast reassures consumers that they’re committed to neutral principles. (Except, you know, when the FCC imposes them.) Comcast spokesperson Sena Fitzmaurice told Online Media Daily that the company will “continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.”
Personally, I’m torn. Net Neutrality is an important principle to preserve the freedom of the Internet. But on the other hand, courts so rarely limit continually-growing federal powers that I can’t help but cheer when that power does get limited. And the power to “regulate the Internet” does sound a little scary, doesn’t it?
What do you think? Is there any hope left for legal Net Neutrality?