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Court: FCC has no power to regulate Net neutrality

Declan McCullagh
C Net News [1]
Tuesday, April 6, 2010

The Federal Communications Commission does not have the legal authority to impose strict Net neutrality regulations on Internet providers, a federal appeals court ruled Tuesday.

A three-judge panel in Washington, D.C. unanimously tossed out the FCC’s August 2008 cease and desist order [2] against Comcast, which had taken measures to slow BitTorrent transfers and had voluntarily ended them [3] earlier in the year.

Because the FCC “has failed to tie its assertion” of regulatory authority to any actual law enacted by Congress, the agency does not have the authority to regulate an Internet provider’s network management practices, wrote Judge David Tatel [4] of the U.S. Court of Appeals for the D.C. Circuit.

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[5]

Tuesday’s decision could doom one of the signature initiatives of current FCC Chairman Julius Genachowski, a Democrat. Last October, Genachowski announced plans [6] to begin drafting a formal set of Net neutrality rules — even though Congress has not given the agency permission to begin. (Verizon Communications CEO Ivan Seidenberg, for instance, has said [7] that new regulations would stifle innovative technologies like telemedicine.)

Even though liberal advocacy groups had urged the FCC to take action against Comcast, the agency’s vote to proceed was a narrow 3-2, with the dissenting commissioners predicting at the time that it would not hold up in court. FCC Commissioner Robert McDowell, a Republican, said at the time [2] that the FCC’s ruling was unlawful and the lack of legal authority “is sure to doom this order on appeal.”

The ruling also is likely to shift the debate to whether Congress will choose to explicitly grant the FCC the authority to regulate companies’ network management practices, and revive lobbying coalitions that have been defunct for the last few years.

Full story here. [1]