April 7, 2010

Comcast Wins A Judicial Fight [7:36 am]

The consequences of reframing “net neutrality” as merely “network management.” Court Favors Comcast in F.C.C. ‘Net Neutrality’ Ruling [pdf]

A federal appeals court ruled on Tuesday that regulators had limited power over Web traffic under current law. The decision will allow Internet service companies to block or slow specific sites and charge video sites like YouTube to deliver their content faster to users.

[...] Sam Feder, a lawyer who formerly served as general counsel for the F.C.C., said that the court’s decision “is the worst of all worlds for the F.C.C.” He said the opinion was written narrowly enough that it was unlikely to be successfully appealed, while also raising enough possibilities of other ways that the F.C.C. could accomplish the same goals that it was unlikely to inspire Congressional action to give the agency specific regulatory authority over the Internet.

A quick skim of the opinion (Comcast v. FCC) reveals that the court concluded that the FCC could not exercise its “ancillary authority” without first showing that the authority was used to remedy an action that it is specifically obliged to respond to in the text of its enabling Act. Without showing that the actions of Comcast led to harms that the FCC is obliged to remedy, the current net neutrality policy is an overreach of authority and, therefore, was not upheld.

So, without legislation that specifically accepts that there is a threat, the FCC can only try to prove the threat. At this point, that’s going to mean a serious research effort compounded with a host of new reporting requirements so that the case can be made.

Because we keep falling behind those countries whose policymaking is not crippled by a devotion to an ideology of free markets while using that ideology to block any effort to actually create (and referee) a competitive market.

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