Search Penny Hill Press

Friday, December 10, 2010

The FCC’s Authority to Regulate Net Neutrality After Comcast v. FCC

Kathleen Ann Ruane
Legislative Attorney

In 2007, through various experiments by the media, most notably the Associated Press, it became clear that Comcast was intermittently blocking the use of an application called BitTorrent™ and, possibly, other peer-to-peer (P2P) file sharing programs on its network. Comcast eventually admitted to the practice and agreed to cease blocking the use of the P2P applications on its network. However, Comcast maintains that its actions were reasonable network management and not in violation of the Federal Communications Commission’s (“FCC” or “Commission”) policy.

In response to a petition from Free Press for a declaratory ruling that Comcast’s blocking of P2P applications was not “reasonable network management,” the FCC conducted an investigation into Comcast’s network management practices. The FCC determined that Comcast had violated the agency’s Internet Policy Statement when it blocked certain applications on its network and that the practice at issue in this case was not “reasonable network management.” The FCC declined to fine Comcast because its Internet Policy Statement had never previously been the basis for enforcement forfeitures. Comcast appealed this decision to the U.S. Court of Appeals for the D.C. Circuit, as did other public interest groups.

The D.C. Circuit ruled on April 6, 2010, that the FCC could not base ancillary authority to regulate cable Internet services solely upon broad policy goals contained elsewhere in the Communications Act. Whatever the merits of other jurisdictional arguments the FCC may advance, the court found that the FCC did not have jurisdiction to enforce its network management principles on the basis it had advanced in that case. The court did not address the other questions posed by the case, including whether the FCC could proceed via adjudication.

The court’s ruling has thrown into doubt the FCC’s authority to regulate Internet network management. The FCC had announced the possibility of reclassifying the transmission component of broadband Internet services as a telecommunications service under Title II of the Communications Act. However, in a recent statement regarding the status of the rulemaking, Chairman Genachowski announced that the agency had abandoned its proposal to reclassify broadband Internet services. In his statement, the Chairman indicated that the FCC would anchor its authority to implement the new regulations in various sections of the Communications Act. As of this writing, the order the Chairman has circulated to the other commissioners had not been released to the public, so it is unclear how the FCC’s current approach differs from its previously failed attempt to assert ancillary authority. If the FCC’s new proposal is adopted, the FCC’s assertion of ancillary authority to regulate in this area may, again, be subject to court challenge.

Congress could act to grant the FCC the authority necessary to adopt network management rules. If a law were enacted, the FCC would not have to rely on its ancillary jurisdiction to enforce network management rules. For further information on the policy aspects of this debate, see CRS Report RS22444, Net Neutrality: Background and Issues, by Angele A. Gilroy.

Date of Report: December 2, 2010
Number of Pages: 15
Order Number: R40234
Price: $29.95

Follow us on TWITTER at or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail
Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.