Houston Area Liberty Campaign

[Story by HALC.us staff.]

A federal appeals court issued an opinion on Tuesday, April 6 that the Federal Communications Commission (FCC), the Justice Department (DOJ) do not have authority to manage network practices of internet service providers (ISPs).  (The case granted a Petition for Review for Petitioner, Comcast, and vacated the prior Order.  The DC Circuit found that the FCC did not have the authority that it claimed to be using to regulate ISPs. This decision calls into question the FCC’s authority to regulate any ISP or do anything to protect consumers on the Internet.

This case was brought forth on the concept of net neutrality, a concept in which companies perating telecommunications networks shouldn’t be able to play favorites with content being transmitted over their networks.  For example, one movie company shouldn’t be able make a deal with Verizon to get preferential treatment and have its movies download quicker than another movie company. If/when that does happen, then those companies are influencing your decisions by allowing one service to operate better than a similar service in which the carrier does not have a financial interest.

Net neutrality is a holdover from the Communications Act of 1934, which prohibited telephone companies from playing favorites. However, in 2005 the FCC changed its rules so that some services, such as Internet services, would be exempt from those consumer protections.

In 2006, the “net neutrality” was included by the FCC in the agreement that allowed AT&T to buy BellSouth.  In part, the agreement stated:

“AT&T/BellSouth also commits that it will maintain a neutral network and neutral routing in its wireline broadband Internet access service. This commitment shall be satisfied by AT&T/BellSouth’s agreement not to provide or to sell to Internet content, application, or service providers, including those affiliated with AT&T/BellSouth, any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth’s wireline broadband Internet access service based on its source, ownership or destination.”

In 2007, it was revealed that Comcast was blocking some types of Internet traffic. The original Formal Complaint by Free Press and Public Knowledge Against Comcast For Secretly Degrading Peer-to-Peer Applications, filed with the FCC by Public Knowledge and other public interest groups, alleged that Comcast was engaging in substantial network neutrality violations. Free Press and Public Knowledge are two separate organizations. Free Press and Public Knowledge both alleged that Comcast was secretly degrading innovative protocols used for transporting and sharing large files, such as high quality television programming and movies. The Formal Complaint by Free Press asked the FCC to address these violations and requested that the FCC declare such blocking to be a violation of the AT&T/BellSouth principles.

The FCC heard the arguments and agreed that Comcast blocking certain internet traffic was a violation of the ATT/BellSouth principles.  Comcast appealed to the DC Circuit.  Here is Comcast’s Opening Petition For Review of an Order of the Federal Communications Commission for Petitioner Comcast, requesting the DC District Court to review the FCC’s earlier ruling against Comcast.

While the appeal was pending, the FCC released its Open Internet Principles and Public Knowledge filed comments. The FCC stated it relied upon “ancillary authority”[1] in Sec. 230 of the Communications Act of 1934 for its power to regulate broadband internet access, where even if the FCC did not have an express delegation of power to regulate broadband internet, not being able to do so would undermine other express provisions of the law.

However, the DC District Court, upon examining the case, determined that the FCC’s bases for argument were “policy statements” and not express delegations of power and that any ancillary authority for the FCC’s power to regulate broadband internet access must come ancillary to an express delegation of power and not policy statements.  The DC District Court ruled that the specific use that Comcast had argued using ancillary authority did not work in that case.  The DC Court also ruled that every single time Comcast wanted to use ancillary authority, Comcast needed to separately justify it on a case-by-case basis. The DC Court further ruled that there is no such thing as ancillary authority over broadband internet, per se, only ancillary authority “to promote open internet, transparency in billing, universal service,” etc.

The District Court case was argued January 8, 2010 in the United States District Court for the District of Columbia Circuit.  It is styled Comcast Corporation, Petitioner, v. Federal Communications Commission and United States of America, Respondents, NBC Universal, et al., Intervenors, No. 08-1291.  The case was argued before Chief Judge David B. Sentelle, Circuit Judge David S. Tatel and Senior Circuit Judge A. Raymond Randolph.

Helgi C. Walker (of Wiley Rein LLP, Washington DC) argued the cause for petitioner Comcast Corporation. With her on the briefs were Eve Klindera Reed, Elbert Lin (Reed and Lin of Wiley Rein LLP, Washington DC); David P. Murray (partner in the Litigation Department, Willkie Farr & Gallagher LLP, Washington DC); James L. Casserly (partner in the Communications, Media & Privacy Department, Willkie Farr & Gallagher LLP, Washington DC); and David H. Solomon (Partner at Wilkinson Baker Knauer, LLP, Washington DC).

Howard J. Symons argued the cause for intervenors National Cable & Telecommunications Association and NBC Universal. With him on the briefs were Neal M. Goldberg, Michael S. Schooler, and Margaret L. Tobey; Richard Cotton[2] entered an appearance.

Kyle D. Dixon was on the brief for amici curiae Professors James B. Speta and Glen O. Robinson and The Progress and Freedom Foundation in support of petitioner.

Austin C. Schlick, General Counsel of the Federal Communications Commission, argued the cause for respondents. With him on the brief were Catherine G. O’Sullivan[3] and Nancy C. Garrison[4], Attorneys, U.S. Department of Justice, Joseph R. Palmore, Deputy General Counsel, Federal Communications Commission, Richard K. Welch[5], Deputy Associate General Counsel, and Joel Marcus[6], Counsel. Daniel M. Armstrong III[7], Associate General Counsel, entered an appearance.

Marvin Ammori argued the cause for intervenors Free Press, et al. in support of respondents. With him on the brief were Henry Goldberg, Harold Feld, and Andrew Jay Schwartzman.

John F. Blevins was on the brief for amici curiae Professors Jack M. Balkin, et al. in support of respondents.

These natural persons, groups and entities were represented in this case.  Natural persons are listed below alphabetically under their last name:

• Advanced Communications Law & Policy Institute at New York Law School
• Beth Ahern
• American Homeowners Grassroots Alliance
• American Legislative Exchange Council, Telecommunications & Information Technology Task Force
• American Library Association
• AT&T Inc.
• Richard Bennett
• BeSafe Technologies Inc.
• Center for Democracy & Technology
• Christian Coalition of America; the CP80 Foundation; Enough is Enough; and Stop Child Predators
• Cisco Systems, Inc.
• CTIA – The Wireless Association
• Comcast Corporation
• Competitive Enterprise Institute
• Computer & Communications Industry Association
• Consumer Federation of America and Consumers Union
• Discovery Institute
• Distributed Computing Industry Association
• Electronic Frontier Foundation
• Embarq
• Fiber-to-the-Home Council
• Dean Fox
• Free Press; Public Knowledge; Media Access Project; Consumer Federation of America; Consumers Union; New America Foundation; Participatory Culture Foundation
• Free State Foundation
• Frontier Communications
• Aaron G.
• Laurence Brett Glass d/b/a LARIAT
• David Gerisch
• Global Crossing North America, Inc.
• Hands off the Internet
• Health Tech Strategies, LLC
• Independent Telephone & Telephone Communications Alliance
• Information Technology and Innovation Foundation
• Information Technology Association of America
• Institute for Policy Innovation
• Danny Ray Jackson
• Sean Kass
• Labor Council for Latin American Advancement
• Nickolaus E. Leggett
• Curtis L. Lowery, M.D., University of Arkansas for Medical Sciences
• Brad Lindaas et al., Northwestern University Students for Net Neutrality
• Motion Picture Association of America
• National Association of Realtors
• National Association of State Utility Consumer Advocates
• National Association of Telecommunications Officers and Advisors
• National Black Chamber of Commerce; Labor Council for Latin American Advancement; Latinos in Information Sciences and Technology Association; League of Rural Voters; National Black Justice Coalition; National Council of Women’s Organizations; and National Congress of Black Women
• National Cable and Telecommunications Association
• National Grange of the Order of Patrons of Husbandry
• National Public Safety Telecommunications Council
• National Telecommunications Cooperative Association
• NBC Universal, Inc.
• New Jersey Division of Rate Counsel
• New York Public Service Commission
• The OASIS Institute
• Open Internet Coalition
• Organization for the Promotion and Advancement of Small
• Telecommunications Companies
• George Ou
• Part-15 Organization
• Barry Payne
• The Progress and Freedom Foundation
• Qwest Communications International, Inc.
• Recording Industry Association of America
• SafeMedia Corporation
• Small Business and Entrepreneurship Council
• Christopher Soghoian
• Songwriters Guild of America
• Sony Electronics, Inc.
• Sprint Nextel Corporation
• Anthony Tarsia
• Telecommunications for the Deaf and Hard of Hearing, Inc.
• Telecommunications Industry Association
• S. Michael Telford
• Time Warner Cable, Inc.
• Steven Titch, The Reason Foundation
• Robert M. Topolski
• Michael Trausch
• Joseph Tucek
• U.S. Chamber of Commerce
• U.S. Distance Learning Association
• United States Hispanic Leadership Institute
• United States Internet Industry Association
• United States Telecom Association
• Verizon and Verizon Wireless
• Viacom Inc.
• Vonage Holdings Corp.
• Vuze, Inc.
• Women Impacting Public Policy
• Wireless Communications Association International, Inc.

[See Findlaw.com blog article.]

Related Reading:

· Comcast wins Web traffic court fight against FCC, Reuters (Apr. 6, 2010)
· Court Says F.C.C. Cannot Require Net Neutrality, New York Times (Apr. 6, 2010)
· Communications Act of 1934 , FindLaw
· Net Neutrality, Google Public Policy Blog
· An Open Internet: FCC Moves Towards Net Neutrality, by Neetal Parekh, FindLaw Technologist (Oct. 26, 2009)
· Media Minutes: April 9, 2010, Stevie Converse and Candace Clement, Producers (Apr. 8, 2010)
· Democracy Now: Court Rejects FCC Authority over Internet, Video (48:09 mins)
· Net Neutrality is not some Marxist plot, Christian Coalition of America’s website (Apr. 7, 2010)
· Network Neutrality, Public Knowledge website (Apr. 6, 2010)
· Joseph Palmore’s “The Harvard Crimson” blog
· Helgi C. Walker Appointed by U.S. Court of Appeals for the D.C. Circuit to Its Advisory Committee, Wiley Rein LLP, News Release (July 1, 2009)
· How I Lost the Big One, Marvin Ammori’s blog (Apr. 7, 2010)

[1] A proceeding aideing another proceeding considered as principal.  Auxiliary or subordinate. (Black’s Law Dictionary.)
[2] No bio available.
[3] No bio available.
[4] No bio available.
[5] No bio available.
[6] No bio available.
[7] No bio available.