Court rules against FCC in 'net neutrality' case

A federal appeals court ruled Tuesday the the Federal Communications Commission does not have the authority to require broadband providers to give equal treatment to all internet traffic on their networks.  From AP:

The ruling by the U.S. Court of Appeals for the District of Columbia is a big victory for Comcast Corp., the nation's largest cable company. It had challenged the FCC's authority to impose so-called "net neutrality" obligations on broadband providers.

The ruling also marks a serious setback for the FCC, which is trying to officially set net neutrality regulations. FCC Chairman Julius Genachowski argues that such rules are needed to prevent phone and cable companies from using their control over Internet access to favor some online content and services over others.

The decision also has serious implications for the massive national broadband plan released by the FCC last month. The FCC needs clear authority to regulate broadband in order to push ahead with some its key recommendations, including a proposal to expand broadband by tapping the federal fund that subsidizes telephone service in poor and rural communities.

The court case centered on Comcast's challenge of a 2008 FCC order banning the company from blocking its broadband subscribers from using an online file-sharing technology known as BitTorrent. The commission, at the time headed by Republican Kevin Martin, based its order on a set of net-neutrality principles it adopted in 2005 to prevent broadband providers from becoming online gatekeepers. Those principles have guided the FCC's enforcement of communications laws on a case-by-case basis, and now Genachowski is trying to formalize those rules.

A unanimous three judge panel ruled that Congress has not given the FCC the power to regulate network management practices of internet service providers.  This is good news in the era of Obama administrative agency overreach.  But don't get too excited.  The FCC has already telegraphed its intention to reclassify broadband internet service to fall under Type II, or common carriage telecommunications rules so it could be regulated just like rotary phone service was back in the old days. 

I posted on this back in February in  "FCC: Taking title to the internet" if you want to know more.

FCC: taking title to the Internet part II

In an earlier post about the FCC's plans to regulate internet service providers, I got carried away (like Flo in the Progressive commercials) and let my frustrations about the explosive growth of power of the regulatory agencies of the executive branch of our federal government carry me off message.  The message is government regulation of internet service is a bad idea.

From Business Week (H/T Simon Owens at Bloggasm.com):

AT&T Inc., Verizon Communications Inc. and Time Warner Cable Inc. told U.S. officials to reject calls to move oversight of Internet service into the same “burdensome” regulatory category as telephones.

“Far-reaching and destructive consequences” would follow if the Federal Communications Commission treats Internet service as it has treated telephone service, which is more heavily regulated, the companies said in a letter to FCC Chairman Julius Genachowski. Also signing the letter were Qwest Communications International Inc. and trade associations for the cable and phone industries.

The FCC is considering moving high-speed Internet service, or broadband, from a lightly regulated category, “reversing almost 10 years of deregulation,” Andrew Lipman, a Washington- based attorney for Bingham McCutchen LLP, said in an interview today. “That’s a fairly significant U-turn.”

Reclassification could be a way to solidify agency authority, which in January was questioned by judges hearing Comcast Corp.’s challenge to an FCC ruling, Lipman said.

Randolph J. May has written an insightful opinion piece at CBS News comparing the FCC plan to Nancy Pelosi's "public option:"

The "public option" for health care - which the American public came to see as symptomatic of government overreach -- certainly helped sink the most grandiose visions of ObamaCare. It's possible that proposals for a "public option" of sorts for new Internet regulation could sink the Federal Communications Commission's efforts to adopt new broadband policies.

To be sure, the two public options, one for health care and one for Internet regulation, are dissimilar. After all, they arise in two very different contexts. But they have this in common: both are grounded in an almost unshakeable faith that government should play a central role in regulating certain services provided by the private sector.

With respect to communications policy, this misplaced faith in the superiority of government control over marketplace competition causes some to advance proposals that will be viewed by many as radical overreaching. And, as with health care reform, the very act of overreaching may well sidetrack adoption of more moderate proposals.

Here's what I mean by the Internet public option - and why it should be rejected.

Recently, organizations like Public Knowledge and Free Press have begun to mount a fierce campaign to have the FCC reverse a decision first made in 2002, which it has since reaffirmed several times, not to regulate Internet providers as common carriers under Title II of the Communications Act. The FCC determined that Title II regulation was inconsistent with its view that "broadband services should exist in a minimal regulatory environment that promotes investment and innovation in a competitive market."

Although the burdensome requirements that accompany Title II regulation are manifold, two key elements are at its core. The FCC is required to regulate the rates of common carriers to ensure they are "reasonable" and to enforce a non-discrimination prohibition. These core elements are the hallmark of traditional public utility regulation; hence what I call the public option. (emphasis added)

In a similar effort to insure "reasonable" and "non-discriminatory" mortgages, the government created the housing bubble that led to the current recession.  What could possibly go wrong if the government takes over the internet?

It should come as no surprise that Public Knowledge and Free Press are left-wing advocacy groups funded by the Open Society Institute (aka George Soros) and other liberal groups.

FCC: Taking title to the internet

From The American Spectator:

In the fight over the Obama Administration and Federal Communications Commission's attempts to regulate the Internet via a policy known as "net neutrality," a court case involving a cable company and an online company that enables Internet content sharing is forcing the Obama Administration to look for new ways to gain control of Internet networks.

Last month a federal court raised doubts about whether the FCC had jurisdiction over Internet Service Providers (ISPs), such as the company in question, Comcast, and AT&T and Verizon, when the FCC made a 2008 ruling that Comcast had illegally blocked the Internet content-sharing application BitTorrent. The court's questioning of the FCC authority now has many -- including senior FCC staff -- believing that the federal court will side with Comcast and rule that the agency has only "ancillary jurisdiction" over broadband services.

But already, the FCC is strategizing on how it can gain regulatory control of the Internet and the broadband networks that connect to it, if the courts rule against them. According to FCC sources, the agency is considering "reclassifying" broadband Internet services under rules that were once used for rotary phone service. To do this, the FCC would categorize broadband networks under Title II, or common carriage rules. Broadband networks have thus far been regulated under Title I, a section for "enhanced communications services."

"You have one set of rules, Title II, that were used for rotary phones, before there was a lot of competition in the communications space, like wireless and the like, and then you have Title I, which has rules more in line with the high-tech world," says an attorney who until recently worked at the FCC. "Common sense says, keep broadband and the Internet under rules for the modern world, not the rules that applied to a technology that was obsolete two decades ago. This just shows how desperate these people are to regulate the networks."

So, essentially, if the U.S. Court of Appeals for the District of Columbia Circuit rules that the FCC does not have the authority to regulate ISP's, then the FCC will just unilaterally reclassify internet service as Type II rotary phone service so it can regulate them?  What happened to the balance of powers and the three branches of government?  Isn't the executive branch supposed to execute the law?

Taken as a whole, the egregious overreaching of the unaccountable regulatory agencies of the Obama administration is frightening.  The Congress can't pass cap and trade legislation, so the Environmental Protection Agency will circumvent the legislative process by declaring that carbon dioxide is a toxic substance, and can therefore be regulated under the Clean Air Act.  And don't forget, the Food and Drug Administration has declared that raw oysters are also toxic, so no more oysters on the half shell, unless they have been "pasteurized."  And as Mark Steyn observed in a recent column, the Consumer Product Safety Commission has forced many resorts to shutdown their hazardous hot tubs:

In Canada, Karen Selick told readers of The Ottawa Citizen about her winter vacation in Arizona last month: "The resort suite I rented via the Internet promised a private patio with hot tub," she wrote. "Upon arrival, I found the door to my patio bolted shut. 'Entry prohibited by federal law,' read the sign. Hotel management explained that the drains in all the resort's hot tubs had recently been found not to comply with new safety regulations. Compliance costs would be astronomical. Dozens of hot tubs would instead be cemented over permanently." In the meantime, her suite had an attractive view of the federally-prohibited patio.

I often ponder what our Founding Fathers would think of this madness.