FCC assesses impact of Comcast ruling on National Broadband Plan

An appeals court ruling this week restricting the Federal Communications Commission’s ability to regulate Internet service providers could inhibit efforts to make high-speed Internet access more available under the commission’s National Broadband Plan, FCC’s general counsel said Wednesday.

“The Comcast/BitTorrent opinion has no effect at all on most of the Plan,” Austin Schlick wrote in a statement posted Wednesday on an FCC blog site. Schlick pointed out that creation of the plan was mandated by Congress. “At the same time, yesterday’s decision may affect a significant number of important Plan recommendations.”

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“The Commission must have a sound legal basis for implementing each of these recommendations,” Schlick wrote. “We are assessing the implications of yesterday’s decision for each one, to ensure that the Commission has adequate authority to execute the mission laid out in the plan.”

The U.S. Court of Appeals for the District of Columbia issued the ruling April 6, on an appeal brought by Comcast against FCC sanctions. The FCC in 2008 sanctioned Comcast for interfering with customers’ ability to use BitTorrent and other peer-to-peer applications for transferring large files. Comcast, after first denying the practice, later defended it as legitimate network management technique. FCC decided that it violated a 2005 commission open Internet policy declaring that consumers are entitled to free access to online content and applications through any type of device.

Although many observers see the court ruling as a blow to the concept of Internet neutrality and competition among network, application, service and content providers, the court did not rule on the legitimacy of the open Internet policy.

“In this case we must decide whether the Federal Communications Commission has authority to regulate an Internet service provider’s network management practices,” the ruling said. The commission acknowledged that it had no express statutory authority, but relied on a catch-all provision of the Communications Act giving it authority to make rules and regulations necessary to carry out its duties.

“The Commission may exercise this ‘ancillary’ authority only if it demonstrates that its action — here barring Comcast from interfering with its customers’ use of peer-to-peer networking applications — is ‘reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities’,” the court wrote in its decision. “The Commission has failed to make that showing.”

The ruling has little immediate impact for Comcast, which already had agreed to stop squelching peer-to-peer traffic from competing content providers and institute new management techniques by 2009, but it established limits on the commission’s authority in a communications technology that did not exist when current laws were written. Although the courts have recognized the commission’s authority to impose some regulation on Internet service providers, the FCC does not have blanket authority, the ruling declared.

Schlick called the ruling important. “It undermines the legal approach the FCC adopted in 2005 to fulfill its statutory duty of being the cop-on-the-beat for 21^st century communications networks,” he wrote.

But he said the commission still has a role to play in the Internet. “The court did not adopt the view that the commission lacks authority to protect the openness of the Internet,” he wrote. Congress also has affirmed that role in last year’s Reinvestment and Recovery Act, in which it required the FCC to develop a national plan for ensuring broadband access all Americans.

Many elements of the plan involve matters over which the commission has the “express statutory delegation of authority” that the court requires, Schlick said. These include projects such as making spectrum available for broadband, improving the efficiency of wireless systems, bolstering the use of broadband in schools, improving coordination with Native American governments to promote broadband, collecting better data on broadband performance, supporting competition and innovation in smart video devices, and developing common standards for public safety networks.