National Broadband Plan Still Relevant Despite Net Neutrality Ruling
In a recent decision from the U.S. Court of Appeals for the District of Columbia, the Court held that the Federal Communications Commission lacked the statutory authority under section 4(i) of the Communications Act of 1934 to regulate an Internet service provider’s actions regarding its network. The case was initiated by the Comcast Corporation to challenge the validity of an adverse order issued to it by the FCC in response to Comcast’s interference with its subscribers’ use of peer-to-peer networking. The FCC order was based upon its assumption of ancillary jurisdiction over the issue under section 4(i) and its determination that Comcast’s action violated the FCC’s internet policy statement adopted in 2005. The Court of Appeals overturned the FCC’s assumption of ancillary jurisdiction over Comcast’s interference with its subscribers’ use of peer-to-peer networking applications because the Court held that the FCC lacked the specific delegated powers under the Communications Act of 1934 to regulate an information service provider. Thus, the FCC internet policy statement did not, in and of itself, confer any authority to the FCC that could be tied directly back to a specific provision in the Communications Act of 1934. The clear impact of the decision places doubt upon the FCC’s ability to prescribe net neutrality rules and enforce them on Internet service providers such as Comcast when they restrict access to their network.
The recent decision has led to reservations about the ability of the FCC to complete its activities associated with the development of a national broadband plan, which was unveiled earlier this year. In its national broadband plan, the FCC has created specific recommendations for Congressional consideration when developing national telecommunications and Internet systems. The plan represents a determined shift by the FCC away from traditional wire transmittal methods to the wireless broadband spectrum. Because the plan focuses on broadband as the medium for future Internet systems and applications, the FCC has specifically recommended in Chapter 4 of the plan that Congress consider enacting policies which spur broadband competition and innovation policy. The Comcast decision should do little to deter continued dialogue on the national broadband plan, but it clearly places pressure upon Congress to review the future development of the Internet and to determine what regulatory authority it will allow the FCC to pursue when ensuring open access to the Internet by users and applications. While the effort to adopt a national broadband plan is not dead, a major lobbying battle will likely ensue as those for and against net neutrality will have a new forum to debate its provisions.
There are other areas of the national broadband plan that industry groups, internet service providers, schools, tribal governments, hospitals, and entrepreneurs should be reviewing to create their legislative agendas when Congress convenes to take up the legislation that is likely to follow in the wake of the FCC’s recommendations for policy action. The Law, Legislative and Government Affairs Practice Group at Williams Kastner can assist you in formulating and submitting your legislative agenda to members of Congress for inclusion into legislation when the debate on the future of the Internet and wireless broadband communications begins on Capitol Hill.
