by Mike Masnick

Filed Under:
fcc, mandates, net neutrality

comcast, fcc

Court Notices That The FCC Appears To Have No Legal Mandate To Enforce Net Neutrality

from the good-for-them dept

With the FCC trying to use its legal fight with Comcast to push for net neutrality, an appeals court has pointed out that the FCC doesn't have any legal basis for policing net neutrality. This is a point that we've made in the past, when we found it odd that the same groups that fought like dogs to have a court say that the FCC had no mandate to enforce a "broadcast flag" were the same groups that suddenly thought the FCC had a mandate over net neutrality.

The truth -- as courts have recognized in both cases -- is that both appear to be situations where the FCC is overreaching its authority.

Still, it's not just the groups supporting the FCC on net neutrality that are taking inconsistent positions here. Remember how Comcast -- which this latest ruling supports -- has in the past used the argument that the FCC does have this mandate over them to try to avoid regulatory oversight in California. So neither side looks very good here. In fact, in a recent interview concerning the proposed Comcast/NBC merger, Comcast's spokesperson highlighted that people shouldn't be afraid of NBC getting preferential treatment because "existing law already prohibits any discrimination." What existing law? Uh, the same one Comcast just convinced the court doesn't exist. In other words, the law doesn't exist when Comcast doesn't like it, but if anyone says Comcast might violate neutrality, it insists the law suddenly does exist.

On the whole, it's a good thing that the court is making sure the FCC doesn't overstep its authority here -- though, there's a pretty good chance that the response is going to be a push in Congress to give the FCC this authority. And that's where things get sticky. Should the FCC have the right to regulate the internet? While the concept of net neutrality is important and it would be bad for it to go away, that's quite different than opening up the pandora's box of giving the FCC the right to enforce it. The risk of unintended (and dangerous) consequences is quite high.

Instead, the real focus should be on increasing competition in the broadband space so that users have a real choice and can ditch any provider who decides to ignore the principles behind net neutrality. Until that happens then we're going continue to have these battles over the symptoms of not enough competition.

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  • icon
    Rose M. Welch (profile), 8 Jan 2010 @ 3:10pm

    Free Market?

    The FCC doesn't have the resources to effectively administer it's current duties. Screw adding more duties.

    Further, if the FCC cracked down on the broadband locational monopolies, you wouldn't need net neutrality laws. We would take care of errant service providers ourselves, by switching to a different provider.

    Ah, the free market. I wish we had one.

    reply to this | link to this | view in chronology ]

  • icon
    Nastybutler77 (profile), 8 Jan 2010 @ 4:21pm

    Federal COMMUNICATIONS Commission

    Doesn't FCC stand for Federal Communications Commission? I would say that if any body is going to regulate the internet, it would fall to the FCC. While I like the Wild West we have now on the net, at some point the government is going to get their sticky little hands on it. That's just the way government works, like it or not.

    reply to this | link to this | view in chronology ]

    • icon
      ChurchHatesTucker (profile), 8 Jan 2010 @ 4:36pm

      Re: Federal COMMUNICATIONS Commission

      "Doesn't FCC stand for Federal Communications Commission? I would say that if any body is going to regulate the internet, it would fall to the FCC. "

      See, this is why things like The Patriot Act get enacted.

      reply to this | link to this | view in chronology ]

      • identicon
        Haapi, 8 Jan 2010 @ 6:45pm

        Re: Re: Federal COMMUNICATIONS Commission

        I dislike (to put it mildly) the Patriot Act, but, no, I don't "see" the point of your comment.

        IF the FCC is tasked with such oversight, and IF the FCC sees that lack of competition is the root cause of violating its regulations, then it should elevate [shift sideways?] that violation to the FTC on those grounds.

        I don't think either IF obtains, today, actually, and maybe they should.

        reply to this | link to this | view in chronology ]

    • icon
      Laurel L. Russwurm (profile), 8 Jan 2010 @ 10:56pm

      Re: Federal COMMUNICATIONS Commission

      Currently the internet is international.

      The FCC is just YOUR country's regulatory body. Ours is the CRTC, and I would suspect that most other countries in the world have their own....

      Which in itself is a compelling reason for net neutrality.

      How would you expect the FCC to enforce net neitrality on China? Isn't there enough war?

      reply to this | link to this | view in chronology ]

  • identicon
    Bryce, 8 Jan 2010 @ 4:24pm

    Seems to me that these types of issues boil down to consumer protection and unfair / anti-competitive business practices, which would put them squarely within the FTC authority.

    reply to this | link to this | view in chronology ]

  • identicon
    consumer, 8 Jan 2010 @ 5:28pm

    "the real focus should be on increasing competition in the broadband space"

    I'm not holding my breath

    reply to this | link to this | view in chronology ]

  • identicon
    Rooker, 8 Jan 2010 @ 11:05pm

    Customers of AT&T DSL shouldn't need permission to visit Verizon's website. When you plug the modem into the wall, the unfiltered, unprocessed internet should come out. If these basic concepts can't be protected by current law, then the law needs to change.

    "Competition and the free market will prevent these problems" is a myth that never works out here in the real world. The choice between bad and equally bad is not competition and does nothing to prevent consumer-hostile companies from behaving like douchebags. The only thing that will is to outlaw the douchebag behavior.

    reply to this | link to this | view in chronology ]

  • identicon
    gfh, 8 Jan 2010 @ 11:55pm

    The problem is that the FCC focused too much in this argument on the process. They should be looking to lose on process but win on jurisdiction, if anything.

    That way they don't undermine the net neutrality proceeding (where there's no question that the process is legit, but there is question as to whether there's jurisdiction). In the Comcast case, it looks an awful lot like they fined someone for rules that did not exist (but which they could have enacted earlier if they wanted to).

    Specific statutes give them direction, but their jurisdiction is "communication by wire or radio."

    reply to this | link to this | view in chronology ]

  • icon
    The Anti-Mike (profile), 9 Jan 2010 @ 8:25am

    FCC is pretty much a lost organization, killed by Mr George W Bush who allowed a very political appointee to run the show (Michael Powell, son of Colin Powell). He was, IMHO, a completely political hack more interested in furthering conservative values than actually doing right by the people as a whole.

    In those 5 years, the FCC lost pretty much all of it's credibility. It's pretty hard to get back from this one.

    Net Neutrality is something that would likely require new laws rather than just guidelines from the FCC or others to accomplish, and may still have some constitutional issues. It certainly appears to be something beyond the FCC's powers.

    reply to this | link to this | view in chronology ]

  • identicon
    Gene Cavanaugh, 9 Jan 2010 @ 9:42am

    FCC and net neutrality

    Too much regulation seriously hampers progress, and when the lack of campaign finance reform gives regulators a choice between selling out to the wealthy or not being in office, it is compounded.
    However, unrestricted greed and an absence of any regulation is far, far worse.
    Who should provide reasonable regulation? Without breaking the stranglehold on legislation we have given the wealthy, there is no answer.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Jan 2010 @ 10:31am

    "the real focus should be on increasing competition"

    The real focus IS on turning the Internet into the broken mainstream media that we have today under the pretext that it's to help promote net neutrality. If it were really about promoting net neutrality there wouldn't be a monopoly on existing infrastructure and on who can build new infrastructure and the competition wouldn't allow the mainstream media to be as corrupt and broken as it currently is. and the evidence for the fact that this is the true focus is the fact that, outside the Internet, this is exactly what the government has accomplished. When their motives outside the Internet are clearly not intended to be in the public interest, why should I believe that their motives for Internet regulation are intended to be in the public interest?

    reply to this | link to this | view in chronology ]

  • identicon
    Noel, 9 Jan 2010 @ 12:13pm


    What company or corporation follows principles?

    reply to this | link to this | view in chronology ]

  • identicon
    AZM, 10 Jan 2010 @ 7:51am

    Not a ruling - just oral arguments

    Slight correction is needed in this story - the court on Friday did not issue a ruling, that is probably still a couple of months away. The Wired and other news stories are basing their opinions of the likely outcome on the Judges' questions during oral arguments. It is still very possible that the court won't rule on the net neutrality authority issue instead deciding on narrower administrative law grounds.

    reply to this | link to this | view in chronology ]

  • identicon
    Talbot, 10 Jan 2010 @ 3:02pm


    ... the FCC has no Constitutional basis to exist at all, and absolutely zero authority to regulate/rule anything.

    American radio frequency airwaves were originally open & free to everyone, similar to the internet.

    But the federal Radio Act of 1912 blatantly & illegally seized half the useable RF spectrum for the government/military. A shameful pattern of Federal bullying and special-interest corrupt regulation followed ... resulting in the 'Radio Act of 1927' establishing the Federal Radio Commission bureaucracy (...now the FCC).

    The airwaves were simply declared public property under Commission control... pure socialism with no Constitutional basis.

    Same thing will happen to the internet within 15 years.

    The courts are an integral part of the government-- and certainly will not protect you from the government itself.

    reply to this | link to this | view in chronology ]

  • identicon
    Brooke, 11 Jan 2010 @ 1:32pm

    Cable video regs aren't the same as neutrality...


    You've made the same error Karl Bode made in his post on this subject. The regulations Comcast is talking about with respect to the NBCU merger are already extant regulations that cover cable and other MVPDs. Those regulations are totally different from the net neutrality regulations that would cover Comcast in its ISP operations.

    It's true that it was foolish of Comcast to argue the FCC's jurisdiction over the Internet to get out of litigation in California. But with the NBCU issue, you're talking about the regulation of a totally different service (in the eyes of the law), one which has a well-established statutory record. With net neutrality, there is no statutory authority and only debatable ancillary authority.

    To say that Comcast is being hypocritical with respect to NBCU is to say that they're hypocritical for liking apples but not oranges.

    reply to this | link to this | view in chronology ]

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