Now that the Federal Communications Commission has been stripped of the power it presumed over the internet, it's up to Congress to enact laws to regulate the medium.
But considering what they're already up against on Capitol Hill, it looks like the World Wide Web could remain the Wild West for years to come.
An appellate court on Tuesday threw a wrench into the FCC's hopes to expand broadband and bar internet service providers from favoring their own content at the expense of others — a concept known as “net neutrality." The three-judge panel of the U.S. Court of Appeals ruled that the FCC, which can regulate broadcast TV and telephone landlines, doesn’t have the authority to regulate the internet.
The ruling represents a victory for Comcast, whose case brought the issue to the fore. The FCC had sanctioned the cable provider for limiting its customers’ ability to download big BitTorrent video files -- usually TV shows and movies.
The FCC acted after two consumer groups, Public Knowledge and Free Press, complained that Comcast was illegally blocking peer-to-peer file services at times of high internet traffic volume and effectively discriminating against those services without telling their customers -- even as Comcast let other high volume web sites through.
The FCC in August 2008 ruled that Comcast “had unduly interfered with internet user’s right to access lawful internet content” and that its network management practices “are inconsistent with the concept of an open and accessible internet.” It ordered Comcast to remove the block and develop a network management plan that wasn’t discriminatory.
Comcast complied, but it also challenged the FCC in court, arguing both that the FCC hadn’t formally issued anti-discrimination rules it was trying to enforce; and that the FCC didn’t have the authority to regulate the internet to begin with.
The appeals panel agreed.
“It is true that ‘Congress gave the [FCC] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communication technologies.’ It is also true that ‘the internet is such a technology,’” wrote the panel, citing in part briefs filed by each site. “Yet technological change is not the equivalent of untrammeled freedom to regulate.”
Lawyers said Monday's ruling has far broader implications on what the FCC can do.
FCC chairman Julius Genachowski has been pushing for the commission to expand broadband and impose broader “net neutrality” limits. The court case could bar the FCC from doing either.
“It has left the agency unable to protect consumers in the broadband marketplace,” said Derek Turner, research director for Free Press. “This is not a acceptable outcome for the American public.”
Andy Schwartzman, executive vice president of the Media Access Project, said the decision is such a narrow reading of the FCC’s authority “it represents a severe restriction on the FCC’s powers.”
The FCC said in a statement that it would continue to pursue policies to promote "an open internet." But it also conceded that it has its work cut out for it: "(The FCC) will rest these policies -- all of which will be designed to foster innovation and investment while protecting and empowering consumers -- on a solid legal foundation."
