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.