Court to FCC: “You can’t get an unbridled, roving commission to go about doing good.”

Does the FCC actually have the authority to enforce Net neutrality? A federal appeals court seems skeptical. 

As James Gattuso explains at the Tech Liberation Front, the FCC claims its authority to regulate neutrality on the Internet stems from "ancillary jurisdiction." According to Gattuso, "this court-defined doctrine, itself to be found nowhere in the text of the Communications Act, holds that the Commission can in matters that fall within its general statutory grant of jurisdiction and are necessary to ensure the achievement of the Commission’s statutory responsibilities.'" In other words, the FCC's claim to authority over Net neutrality is pretty weak. 

Making things even more difficult for the Commission, right now, there's no set-in-stone neutrality rule for the Commission to enforce. Yet it's gone right ahead and enforced Net neutrality anyway, censuring cable and Internet service provider Comcast for throttling the use of BitTorrent, a peer-to-peer downloading service. Comcast, convinced that it hadn't done anything wrong, took the FCC to court in response. And if remarks made by the judge at last week's arguments are any indication, the court isn't impressed with the FCC's case. 

The issue, as Ars Technica's Nate Anderson notes, is that "because Comcast's behavior ran afoul of an 'Internet Policy Statement' rather than an official rule, the company claims that the FCC had no grounds for action until it made the Policy Statement into actual policy." Gattuso provides more details:

On Friday, the FCC got to air out its arguments in court, during oral arguments in the appeal of the Comcast ruling. By all accounts, it didn’t go well. “You have yet to identify a specific statute,” said Judge Raymond Randolph at one point. As the FCC’s lawyers metaphorically searched their pockets for something to cite, Judge David Sentelle added: “You can’t get an unbridled, roving commission to go about doing good.”
Of course, comments at oral arguments don’t always signal how a case will be decided. Still, things aren’t looking good for the FCC. And an adverse decision would not just negate the Comcast decision, but also derail Commission’s plans to finalize the new, more extensive regulations they formally proposed last October. As former FCC general counsel Sam Federput it: “A lot of regulation — both present and future — could go down with this case.”

Well, one can certainly hope. But my quick impression (subject to change!) is that, though the FCC's ancillary jurisdiction claim is weak, that weakness wasn't what the court's skepticism was actually about. Instead, it seems to me that the court was quibbling with the fact that neutrality regulations aren't yet binding policy. And if that's the case, then presumably all it would take for the court to agree that the FCC has the authority to enforce neutrality would be to actually make a rule — which is exactly what the Commission is currently trying to do

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  • * NAME:||

    OK...Where's the Preview button?

  • Fist of Etiquette||

    Comcast wants you to pay extra for it.

  • ||

    Nothing to see here. The FCC will codefy net neutrality and the judge will have no problem with it.

  • ||

    In chastising the FCC for its claim to an "unbridled, roving commission to go about doing good", the court apparently forgot about the Universal Service Fund.

  • ||

    "go about doing good"

    Did the judge start laughing uncontrollably after he said that? Because I just did.

  • ||

    Why should Comcast have the ability to "throttle" BitTorrent when I pay Comcast to deliver BitTorrent?

    And Tuesday when I want BitBucket Comcast won't deliver it either?

    Fuck Market Fundamentalism, when a duopoly limits choice its time for more choice - not a monopoly instead.

    If Southern Company said - we're out of our power, take Mirant instead - and its 1.75X the price - and I can't leave Southern Company - its time to trust bust.

    Like Soros has said, pure market fundie libertarians are anti-capitalist - they live on eating the remains of their last customers.

  • Enyap||

    How's it like, being the left wing Eric Dondero?

  • ||

    I want a free market for internet content providers.

    How do you like being a right-wing fluffer?

  • ||

    You have a free market for internet content provider. What you want is for someone else to do all the work required to set up the content providing, and to pay the same price as people who are using far less of the service. That is, you want to freeload off the commons.

    Let's keep in mind why Comcast throttled BitTorrent. Because most of their customers despise BitTorrent. They're grown-ups checking their e-mail, surfing the news, looking up tax forms, whatever. And they hate the fact that it all slows to a crawl because the 19-year-old next door is downloading a pirated copy of Girls Gone Wild or The Matrix and sucking up all the neighborhood bandwidth.

  • ||

    Its always porn with you corporate statists. You despise the free-flow of bits and bytes that Jesus would frown on.

    Well, fuck your bits, I want my bits.

  • Jordan||

    Replace porn with something else, you fucking lunatic. You completely missed the point of his post. The point was that BitTorrent slows down the connection for others, the majority of whom don't mind BitTorrent being throttled or blocked if it restores their quality of service.

  • skr||

    to be fair, the argument against cable internet was that your neighbors usage could slow your rate down. Now that that is actually occurring people are pissed because they don't get full bandwidth all the time. Well don't use fucking cable internet.

  • ||

    No, my BitTorrent supercedes your supercilious email to your grandma, you stupid fucking plebian!

  • ||

    You fucking theocrats - you want your propaganda flowing free - yet you want mine cut off. Yet you get the tax breaks for your Christ-faggotry.

    I am sick of you theocrat statist Papist shit-jackers.

    You go fuck yourself - and your state-born "god".

  • Enyap||

    Off your meds again shrike?

  • ||

    yes, anytime I reject your theocracy I am "off your meds".

    Well, fuck your meds. Fuck Merck and Pfizer - you are a god-damned statist.

    As a libertarian I despise that shit.

  • The Libertarian Guy||

    You're no libertarian, shrike.

  • skr||

    Hello, a lot of atheists here. I think you have us mistaken for Republicans.

  • juris imprudent||

    How 'bout you go cut your throat. That will SURELY save us all a bunch of wasted bandwidth.

  • ||

    fuck your fake god in the ass you statist cockswiller.

  • anonymous||

    They could just put limits on usage in general, without throttling specific protocols. BitTorrent, specifically, is often used to (illegally) get video. Oddly, Comcast also tries to sell video services, and may have more motivations than mere congestion control for their actions.

    Fact is, telecoms aren't just good ol private meritocratic entrepreneurs, they're enterprises that profit in many ways from invoking the powers of government for aid when it suits them (try to build a network without access to rights of way, at the very least).

    There's a strong pragmatic argument for regulations which are fairly neutral and intended only to promote competition where it can exist.

    Ideally, government would simply demand that companies that provide content and services that sit on top of IP be separated from companies that provide raw access to bandwidth, upon pain of antitrust violations. The government has done exactly that with power transmission and generation, and if there ever were private road systems (not just the occasional toll road, but whole cities' worth), similar regulation would be necessary as well.

    Even practical libertarians acknowledge if you accept property absolutism, someone could simply buy up all land around your property, refuse you passage, and effectively imprison you. To the extent that they allow limited violation of property rights to address this, they can and should allow limited violation of property rights to allow the free flow of goods, electricity, or data. Or at least accept that if they don't, it presents a serious problem.

  • ||

    by the way, ARE you Eric Dondero?

    Or are you merely fluffing for him?

  • ||

    By the way- as a fluffer you suck.

    Engage your master!

    You suck as a Dondero.

  • Enyap||

    Hear that whoosing sound, that was my comparison going over your head. You constantly try to pass off clearly unlibertarian policies as libertarian, while exaggerating the suppose pro's of the democratic party. Your a left wing Dondero.

  • ||

    No, I always support markets without fail.

    I do support constraints on markets - for instance - child labor laws or pouring contaminants into rivers.

    But see -PURE libertarianism is STUPID BULLSHIT and 98% of the country knows it.

  • skr||

    You keep using that word. I do not think it means what you think it means.

  • the year 2010||

    You keep using that phrase. That movie is like 22 years old. You're not made cool by quoting it anymore.

  • ||

    your nimwit cockblock already said that I "phrased" something.

    Whatever it was.

  • Enyap||

    To add to my comparison, both you and Dondero seem to be obsession with homosexual acts.

  • Enyap||

    have an

  • anonymous||

    For some reason I read that as "Engorge your master!"

  • ||

    shrike|1.11.10 @ 7:45PM|#
    "Fuck Market Fundamentalism, when a duopoly limits choice its time for more choice - not a monopoly instead."

    WHAT "market fundamentalism"? Comcast has a government-enforced monopoly where I live. If local politicos didn't limit suppliers, you might have a point. Right now, you're claiming that government-enforced monopolies are somehow "markets".
    Fail.

  • ||

    Strike "Market Fundamentalism" if you have a monopoly ISP.

    I NEVER would support a "govt-enforced monopoly" - nor is such a "market".

    Serious wires crossed - Ron, I have read several other reason based posts of yours.

  • ||

    'Scuse me. My mistake.

  • juris imprudent||

    No Ron, you had him nailed. You just didn't pound it in deep enough to hold him.

  • ||

    I am not carrying a cross you fucking swiller idiot.

  • ||

    I NEVER would support a "govt-enforced monopoly" - nor is such a "market".

    But you WOULD call a government-enforced monopoly (or duopoly) "Market Fundamentalism."

  • ||

    Fuck Market Fundamentalism, when a duopoly limits choice its time for more choice - not a monopoly instead.

    Everywhere I know, the duopolies consist of:

    1) A regulated cable company with a government-granted franchise monopoly and
    2) A regulated telecom company with a government-granted franchise monopoly.

    Lately, the government has proved willing to let each compete with the other, so now there's a government-granted franchise duopoly. How is this "Market Fundamentalism?"

    If Southern Company said - we're out of our power, take Mirant instead - and its 1.75X the price - and I can't leave Southern Company - its time to trust bust.

    Unless you live[d] in Lubbock, Texas, which actually does have competition between electric wires companies.

    These monopolies are everywhere sustained by government power. You're a fool if you think that giving the regulators more power is going to create more free competition. Regulators like monopolies, as they're easier to control.

  • AH||

    If you really use BitTorrent for all of your media warez needs, then you fail at the internet to begin with and deserve Comcast and all the wonder it offers you.

  • ||

    I think Gattuso--and, by extension, Suderman--are missing the point on ancillary jurisdiction (as evidenced by the fact that the quoted definition of ancillary jurisdiction isn't even a complete sentence but Suderman didn't seem to notice). Ancillary jurisdiction, in and of itself, is a pretty simple concept: if an executive body has jurisdiction to accomplish a goal, it necessarily has jurisdiction to undertake specific steps in furtherance of said goal. The whole point is that a legislative act shouldn't (and probably couldn't) spell out every little step that an executive body can take. The issue here is whether enforcing net neutrality is actually necessary for the FCC to accomplish the goals for which it has explicit jurisdiction. The courts have allowed ancillary jurisdiction to be used as an excuse to expand executive power, but really the question should boil down to this: "Can the FCC fulfill its mission without enforcing net neutrality?" If the answer is yes, then the FCC would be acting outside of its ancillary jurisdiction.

  • Tony||

    Well, one can certainly hope

    Really? Libertarians are against net neutrality? You're not even pretending that you're not corporate stooges with this. Or is it just a twitchy reaction to the word "regulation"? This is the problem with living on slogans. If a lack of a government regulation actually decreases the freedom of individuals, you call it freedom anyway, since government=tyranny. Only corporate interests should have control over the internet, nobody else and certainly not the people who use it. For freedom.

  • robc||

    Contracts. I can negotiate my internet connection. I have freedom. If company A throttles me, I can got with company B. That is freedom.

  • Tony||

    What if Company B throttles you too? What if there is no competitive advantage to not throttling you? Wouldn't it be easier just to have a rule that they can't do that? That's more freedom.

  • robc||

    No it isnt more freedom. The ISPs deserve freedom to package the product they are selling as they see fit.

    See, that is more freedom.

    If everyone throttles due to competitive advantage, then I can buy throttled service or not buy at all. Or start my own non-throttled ISP. And knowing how people feel about throttling, non-throttled service would have a competitive advantage.

  • Sean W. Malone||

    There IS competitive advantage not to thoguh... I already left one ISP for similar concerns. I also let them know why in no uncertain terms.

  • Sean W. Malone||

    And incidentally, if there wasn't, then that would reflect that a majority of consumers didn't really care - meaning what the companies were doing was actually *preferred* by most people. Hard to understand isn't it, Tony?

  • The Angry Optimist||

    you're not entitled to unlimited bandwidth, you douchebag.

  • ||

    Tony has a lot furry porn to download dude. A LOT. He needs that bandwith.

  • The Libertarian Guy||

    Free-range, fair-trade furry porn, right?

  • ||

    This is the problem with living on slogans.

    Yes, your comment illustrates the problem with living on slogans. For example, "net neutrality" is a slogan that doesn't appear to have a fixed meaning.

  • skr||

    I don't use Comcast, and I have never been throttled. Well at least not without paying/asking for it, but that is a completely different legal discussion.

  • TP||

    WTF?

  • TP||

    I guess my comment was too long and was "identified as spam", now I lost it all. I thought you guys fixed all that shit?

  • TP||

    Damn that was a great comment I lost. Thanks.

    Anyway, here's a thread jack:

    NJ Assembly AND Senate pass Medical Marijuana Law, and Corzine has said he'll sign it before he becomes Sec of the Treasury leaves the Governor's Office.

    http://www.nj.com/news/index.s....._lega.html

  • Paul||

    As the FCC’s lawyers metaphorically searched their pockets for something to cite

    Nice.

    But my quick impression (subject to change!) is that, though the FCC's ancillary jurisdiction claim is weak, that weakness wasn't what the court's skepticism was actually about. Instead, it seems to me that the court was quibbling with the fact that neutrality regulations aren't yet binding policy.

    This is the safest assumption. The govenment courts are rarely skeptical of governments right to increase its power, just that it may not be going about it the procedurally correct way.

    Think Eminent Domain transfers of private property to another wealthier private party. Even if the court rules against the transfer, it's not because the government thinks that these transfers are conceptually invalid-- merely that some 't' wasn't crossed or some 'i' not dotted in the carefully constructed 'plan'.

  • robc||

    shrike is why I miss INCIF. yet another reason to hate threaded comments, it broke INCIF bad.

  • The Angry Optimist||

    Net neutrality = code for "TEH evil corporations and their people, acting all corporation-y, should let me do what I damn well please, when I want, with no concern for their profits or their other customers!"

    That's fine, Tony - keep abusing bandwidth and enshrine your whims as legal. Don't be surprised when the era of cheap bandwidth ends and you're shelling out hundreds of bucks because everyone is swamping the networks.

  • TP||

    I thought this "Net Neutrality" shit was about "throttling" specific websites. Ones that are direct competitors of Comcast's services. Such as, using a Google search engine instead of Comcast's search engine. Or using a Yahoo email. That's lost advertising revenues for Comcast, and they want these other web based services to have to pay Comcast to allow their subscribers to get full speed access. That doesn't sound like free and fair competition to me.

  • tarran||

    Under that rubric Apple should be required to sell Microsoft computers in their stores to ensure free and fair competition.

  • Ben P.||

    Nonsense. This would be a fair comparison if Apple managed to forge contracts with the local government, such that it had a government-approved (and hence government-force-backed) right to set down a store in a neighborhood, and then prevent companies in that neighborhood from selling Microsoft products.

    The fact of the matter, as people have repeatedly noted every single time this discussion has come up, is that in many areas of the United States -- I do not have the facts at my fingertips to say 'most', and I would hate to say it and be wrong, so let us simply say 'many' -- broadband providers must at some early point in the process have government sanction more meaningful than a simple damn business license. Broadband providers have already benefited from government largesse in this, and now the point of entry, in the jurisdictions where those broadband providers are a monopoly or, at best, a duopoly, is such a high bar that none but the wealthiest -- not even in concert -- can attain it.

    Meanwhile, I've at least three times in my life been involved either as a part-owner, or a freelance part-time employee, or simply as a volunteer for friends, with start-ups that build custom PCs, and install licensed Microsoft or Novell products. The effort's just not the same. The scope of where government gets involved is not the same.

  • The Angry Optimist||

    I thought this "Net Neutrality" shit was about "throttling" specific websites.

    Clearly you don't know what is meant my Net Neutrality, because it's the opposite of that. But whatever, I get your point. So, if that's what it's about, so what? Don't use Comcast.

    That doesn't sound like free and fair competition to me.

    See what tarran said - how are you going to force a carrier to carry his competition? What's next, making Verizon's phone towers "neutral" to AT&T? Go away.

  • ||

    Clearly you don't know what is meant my Net Neutrality, because it's the opposite of that.

    Ehh, in fairness, it's used to mean a lot of different things. Sometimes it's used to mean things that the FCC already has rules against, but sometimes it's used differently.

  • TP||

    No, you clearly didn't get my point. And, I am right. You are the one that needs to go away, or learn how to do some research.

    Network neutrality is the principle that Internet users should be in control of what content they view and what applications they use on the Internet. The Internet has operated according to this neutrality principle since its earliest days... Fundamentally, net neutrality is about equal access to the Internet. In our view, the broadband carriers should not be permitted to use their market power to discriminate against competing applications or content. Just as telephone companies are not permitted to tell consumers who they can call or what they can say, broadband carriers should not be allowed to use their market power to control activity online.

    That's exactly what I stated. OK, maybe not exactly but that's what I was trying to get at.

  • TP||

    If Comcast has their way, they would be able to block applications like gmail, Vonage, Bing, etc. If Comcast is your provider, your only option is to use Comcast's "SmartZone"email application, search engine and internet based phone service . Unless, of course, you, or Google, pays Comcast a small fee to allow access, or allow full speed access. There's a difference between provider of service (ISP), and provider of internet applications.

    But actually, none of this really matters to me. I happen to be one of those "lucky" people that live in an area where there is "some" competition. I have access to Verizon FiOS, which I will be switching to, and a 4G WiMAXX network from a company called clear.com.

  • TP||

    So, ISP provider x allows access to content A,B, and C. ISP y, allows access to content D,E, and F. ISP z, allows content to G, H, and I. If I want access to all of these, I need to subscribe to x, y, and z. Sounds reasonable.

  • Sean W. Malone||

    And the ISP provider Z provides access to content A, B, C, D, E & F and captures the ENTIRE GODDAMN market for internet overnight.

    Problem solved.

    In fact, please let me know if you ever run into such a problem because I will use every resource I have and pull in as many favors as possible to become ISP "Z" - even though I have no experience in that field, I know, beyond a shadow of a doubt that if I'm *allowed* to set up such a company by law, I would make millions in a day.

  • Sean W. Malone||

    Argh... Alright, I screwed that up a little - point is "Z" or whatever other letter you want comes in and offers *no* content restrictions.

    The minute that happens, every person in the area who can conceive of wanting all manner of content (which is to say, basically everyone who's ever used the internet even once in their lives in any part of the world), will go over to that provider.

    Competition for service in a market where the government isn't busy handing out monopolies or duopolies will not ever do what you claim.

  • TP||

    Yes, that would be the desired "free market" outcome. But unfortunately, that may never happen, and we all know why. And if it does happen, ISP z isn't going to happen overnight.

    The fact of the matter is, Comcast is losing a lot of market share already, especially in Philadelphia. Philly and the burbs now have Verizon FiOS and clear.com 4G WiMAXX. Comcast's days are numbered. But in the mean time, in markets where they do have a monopoly, they are going to milk it for everything they can. Right now Comcast wants to limit and does limit top end use. That's because of their limited bandwidth. They would much rather use that bandwidth for PPV and OnDemand movies. And they have every right to do that. But meanwhile, customers are getting screwed or having to settle for DSL. I live a few miles away from the city, and Verizon has run FiOS here yet, and clear.com is out of range. So, if you want to come set up here, I'll be your first customer.

  • Sean W. Malone||

    Again, it *will* happen, provided there IS actually a free market.

    Know why? Cause IF there aren't excessive, government-imposed barriers to entry (like impossible license fees), I would do it myself.

    But you also mention that people are "settling" for DSL. I have DSL. I chose it specifically because Time Warner was doing some things that felt suspiciously like breaches of privacy and monitoring of the websites I was visiting... They did something I didn't like, I left. I let them know why.

    I don't feel like any of it was "settling". I made my choice, and I'm happy with it AT&T DSL is working out just fine. So you *do* have options already. A better use of everyone's time isn't trying to mandate what ISP's do with their own networks - but trying to make sure there aren't any government restrictions on who can compete.

    I bet you'll find, if you look into it, that your local government is far more responsible for your limited competitive internet options than anything related to the market.

  • Sean W. Malone||

    And yeah, it doesn't happen overnight. I would be surprised if it takes more than a year or two though... And in the meantime, you have other unconsidered options as well - including "4G" from your wireless provider. Some of those plans are actually pretty good, or so I hear.

    It's up to you.

  • ||

    Sounds like a scam to me.

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