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Net Neutrality Hits a Speed Bump

In Comcast case, appellate judges question whether FCC has authority to regulate internet

President Obama’s goal of ensuring net neutrality hit a speed bump on Friday.

Hearing an appeal by Comcast of a Federal Communications Commission ruling that the cable company acted illegally to degrade or partially block BitTorrent video downloads as part of network maintenance, three skeptical appellate court judges repeatedly questioned whether the FCC had authority to regulate the internet.

Lawyers attending the hearing suggested that the judges’ questions indicated that the panel could not only overturn the FCC’s sanction of Comcast but potentially make it difficult to move forward with Obama’s broad plan of imposing neutrality limits at all.

The FCC has are seeking to prevent internet providers from giving favored content providers a higher quality or faster video downloads than less favored ones.

Hollywood unions like the Writer’s Guild have endorsed the goals of net neutrality, worried that without it, internet providers could favor their own content and discriminate against web sites with content they don’t control, making them harder to download or watch.

"This case underscores the importance of the FCC’s ongoing rulemaking to preserve the free and open internet,” FCC chairman Julius Genachowski said in a statement after the hearing. “I remain confident the commission possesses the legal authority it needs and look forward to reviewing the court’s decision when it issues."

The case stems from the FCC’s decision to issue principles for regulating the internet and a complaint that Comcast was violating those principles by blocking or making it much harder to get BitTorrent downloads, without telling its customers.

The FCC in 1998 found Comcast violated its principles and, while issuing no fine, told Comcast to quit doing so.

Comcast appealed the sanction, arguing the “principles” didn’t amount to FCC law and the sanction put “a black mark on our record.” It argued it was being unfairly sanctioned for rules it didn’t know existed.

The judges repeatedly questioned not only what the FCC did in the Comcast case, but whether the FCC has sufficient authority from Congress to regulate the internet.

The tone and the comments made by judges, appeared to leave little doubt of the outcome of the case.

“How do you want to lose?” Chief Justice David B. Sentelle asked an FCC lawyer at one point, suggesting the judges were debating between just overruling the Comcast sanction or going farther towards questioning the FCC’s legal authority to act.  

“It’s clear they had problems” with the FCC’s action, said Andy Schwartzman, executive director of the Media Access Project after the arguments.