[Satellite News 04-07-10] The debate over net neutrality continues as the U.S. Court of Appeals for the District of Columbia ruled against the U.S. Federal Communications Commission‘s (FCC) Internet regulations and broadband expansion plan, released in February. While telcos showed their lobbying strength in challenging the FCC in the name of open business policies for the Internet, elements of the FCC’s broadband plan that affect satellite spectrum allocation are at risk
     In its ruling, issued April 6, the court stated that the FCC lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks. The court case is based on a 2008 legal challenge filed by Comcast against the FCC, after the commission banned the company from blocking its broadband subscribers from using file-sharing torrent sites. Comcast complied with that requirement, but filed an appeal because, it argued, the FCC did not have the authority to hand down an action on this topic.
    “Because the commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any statutorily mandated responsibility, we grant the petition for review and vacate the order," the court said in its ruling.
    As a result, FCC policy statements hold no weight, which may have serious implications on the role of the commission in spectrum allocation. “Policy statements are just that – statements of policy. They are not delegations of regulatory authority … Policy statements can help illuminate that authority to which the authority must ultimately be ancillary,” the court’s three-judge panel wrote in their summary.
    The FCC responded immediately to the ruling. “The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies — all of which will be designed to foster innovation and investment while protecting and empowering consumers – on a solid legal foundation," FCC spokeswoman Jen Howard said in a statement.
    Open Internet Coalition Executive Director Markham Erickson, weighed in on the impact of the decision. “The FCC is now unable to police the Internet against anti-competitive and anti-consumer behavior by broadband providers, and may not be able to implement many of the elements of the National Broadband Plan, including comprehensive Universal Service Fund (USF) reform,” said Erickson.
    The FCC’s broadband plan had already been under attack from telcos Google, Verizon Communications and AT&T, which have joined forces to challenge regulations involving the mobile satellite industry.   
    In addition to complaining about relaxing requirements on satellite providers to deliver broadband service through consumer market devices, Verizon and AT&T claim that the merger between SkyTerra and Harbinger, which was approved by the FCC, would make it more difficult for AT&T and Verizon to lease spectrum from the satellite company and that the FCC “overstepped its authority to impose that condition,” the companies said.
    Free-market business organizations and think tanks have also joined in the fight against the FCC’s regulatory authority over the Internet. Thomas Lenard, president of the Technology Policy Institute, hailed the court’s decision, but stopped short of attacking the commission’s broadband plan. “I am pleased to see the D.C. Circuit Court came to the correct decision in this case.  From a policy perspective, the type of ‘network neutrality’ regulation at issue is not in the best interest of consumers and the Court’s decision indicates that the FCC does not have the authority to impose such regulation … I am concerned, however, that the Commission may now attempt to reclassify broadband as a telecommunications service, subjecting it to traditional public utility-type regulation.  In my opinion, this would be a grave mistake that would undermine the goals of the recently-released National Broadband Plan.”
    Following the ruling, U.S. Sen. John Kerry (D-Mass.) released a statement in support of the FCC’s efforts, suggesting that he could introduce legislation that would provide legal ground for the commission’s broadband oversight rules “This is a history-making decision. It appears to vacate the authority of the FCC to conduct oversight over broadband service and the telephone and cable giants that own the wires … I am not advocating that the FCC reclassify broadband services as a result of this decision, but I absolutely believe they maintain that legal authority and it would be entirely consistent with the history of communications law in our country if they did.”