Comcast Corp. v. FCC
Encyclopedia
Comcast Corp. v. FCC, 600 F.3d 642, is a 2010 United States Court of Appeals for the District of Columbia case holding that the Federal Communications Commission
(FCC) does not have ancillary jurisdiction
over Comcast
’s Internet service under the language of the Communications Act of 1934
. In so holding, the Court vacated a 2008 order issued by the FCC that asserted jurisdiction over Comcast’s network management polices and censured Comcast from interfering with its subscribers' use of peer-to-peer
software.
and Public Knowledge
--two non-profit advocacy organizations--filed a complaint with the FCC. The complaint stated that Comcast’s actions violated the FCC Internet Policy Statement, particularly violating the statement’s principle that “consumers are entitled to access the lawful Internet content of their choice... [and] to run applications and use services of their choice.” Comcast defended its interference with consumers' peer-to-peer programs as necessary to manage scarce network capacity.
Following this complaint, the FCC issued an order censuring Comcast from interfering with subscribers' use of peer-to-peer software—the FCC’s first attempt to enforce its network neutrality
policy. The order began with the FCC stating it had jurisdiction over Comcast’s network management practices under the Communications Act of 1934
(47 U.S.C. § 154). Specifically, the Communications Act of 1934 granted the FCC the power to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with [the Act], as may be necessary in the execution of its functions." Next, the FCC ruled that Comcast impeded consumers' ability to access content and use applications of their choice. Additionally, because other options were available for Comcast to manage their network policy without discriminating against peer-to-peer programs, the FCC found that Comcast’s method of bandwidth management breached federal policy.
Comcast complied with the order and appealed.
to regulate Internet service provider
's network management practices. For an issue to fall within an agency’s authority, the agency need only have ancillary authority—a sufficient statutory support requesting the agency at least take action in the first instance of the issue. Here, the Court did not find a sufficient statutory basis under the Communications Act of 1934 for the FCC’s mandate to regulate the behavior of Internet service providers.
The Court relied on a two-part test for ancillary authority, laid out in Am. Library Ass’n v. FCC: A commission may exercise ancillary authority only if “(1) the Commission’s general jurisdictional granted under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.”
Although Comcast conceded that the FCC satisfied the first prong, the court ruled that the FCC failed to satisfy the second prong. The FCC failed to show that its action of barring Comcast from interfering with its customer’s peer-to-peer
use was reasonably ancillary to the effective performance of its statutorily-mandated authority. Instead, the FCC relied on a Congressional statement of policy and various provisions of the Communications Act—neither of which the Court found created “statutorily mandated responsibilities.” Additionally, by accepting the FCC’s argument, the court believed it would “virtually free the Commission from its congressional tether,” thereby providing the FCC an almost unbounded limit to impose regulations on Internet service providers.
issues, such as ensuring ISPs do not block websites like Hulu or YouTube or enforcing ISP’s advertised broadband speeds.
Further, the court’s decision prompted the FCC to establish new rules regarding internet regulations. Because of the ruling in this case, these rules justify themselves in new ways, namely claiming direct authority through section 706 of the Communications Act, as well as ancillary authority through Title II and VI of the Act. While these justifications avoid the direct complaints raised in this case, it is not clear whether they would hold up on appeal.
and blocking websites in their entirely, while restrictions are fewer than those on cable and DSL.
In January 2011, Verizon filed an appeal in the United States Court of Appeals for the District of Columbia Circuit, which was the same court that heard Comcast Corp. v. FCC, to overturn this new rule, although the new rules had not yet been in effect. Verizon brought this lawsuit because they were concerned by the FCC’s assertion of broad authority for sweeping new regulation of broadband networks and the internet itself, which Verizon believed was well beyond any authority provided by Congress to the FCC.
A few days after the filing by Verizon, MetroPCS
, which had already been accused of violating the new rules, also asked the same court to hear the challenge against the new rules.
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
(FCC) does not have ancillary jurisdiction
Ancillary jurisdiction
Ancillary jurisdiction allows a United States federal court to hear certain claims sufficiently related to the original claim that would otherwise defeat the court's jurisdiction...
over Comcast
Comcast
Comcast Corporation is the largest cable operator, home Internet service provider, and fourth largest home telephone service provider in the United States, providing cable television, broadband Internet, and telephone service to both residential and commercial customers in 39 states and the...
’s Internet service under the language of the Communications Act of 1934
Communications Act of 1934
The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the...
. In so holding, the Court vacated a 2008 order issued by the FCC that asserted jurisdiction over Comcast’s network management polices and censured Comcast from interfering with its subscribers' use of peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
software.
Background
In 2007, several subscribers of Comcast high-speed Internet discovered that Comcast was interfering with their use of peer-to-peer networking applications. Challenging Comcast’s interference, Free PressFree Press (organization)
Free Press is a nonpartisan, nonprofit, national organization working to reform the media in the United States.It was founded in 2002 by media scholar Robert W. McChesney, The Nation contributor John Nichols, and Josh Silver, current CEO of the Democracy Fund, a foundation challenging the influence...
and Public Knowledge
Public Knowledge
Public Knowledge is a non-profit Washington, D.C.-based public interest group that is involved in intellectual property law, competition, and choice in the digital marketplace, and an open standards/end-to-end internet....
--two non-profit advocacy organizations--filed a complaint with the FCC. The complaint stated that Comcast’s actions violated the FCC Internet Policy Statement, particularly violating the statement’s principle that “consumers are entitled to access the lawful Internet content of their choice... [and] to run applications and use services of their choice.” Comcast defended its interference with consumers' peer-to-peer programs as necessary to manage scarce network capacity.
Following this complaint, the FCC issued an order censuring Comcast from interfering with subscribers' use of peer-to-peer software—the FCC’s first attempt to enforce its network neutrality
Network neutrality
Network neutrality is a principle that advocates no restrictions by Internet service providers or governments on consumers' access to networks that participate in the Internet...
policy. The order began with the FCC stating it had jurisdiction over Comcast’s network management practices under the Communications Act of 1934
Communications Act of 1934
The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the...
(47 U.S.C. § 154). Specifically, the Communications Act of 1934 granted the FCC the power to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with [the Act], as may be necessary in the execution of its functions." Next, the FCC ruled that Comcast impeded consumers' ability to access content and use applications of their choice. Additionally, because other options were available for Comcast to manage their network policy without discriminating against peer-to-peer programs, the FCC found that Comcast’s method of bandwidth management breached federal policy.
Comcast complied with the order and appealed.
Opinion of the Court
The D.C. Circuit Court of Appeals held that the FCC failed to justify its exercise of ancillary authorityAncillary jurisdiction
Ancillary jurisdiction allows a United States federal court to hear certain claims sufficiently related to the original claim that would otherwise defeat the court's jurisdiction...
to regulate Internet service provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
's network management practices. For an issue to fall within an agency’s authority, the agency need only have ancillary authority—a sufficient statutory support requesting the agency at least take action in the first instance of the issue. Here, the Court did not find a sufficient statutory basis under the Communications Act of 1934 for the FCC’s mandate to regulate the behavior of Internet service providers.
The Court relied on a two-part test for ancillary authority, laid out in Am. Library Ass’n v. FCC: A commission may exercise ancillary authority only if “(1) the Commission’s general jurisdictional granted under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.”
Although Comcast conceded that the FCC satisfied the first prong, the court ruled that the FCC failed to satisfy the second prong. The FCC failed to show that its action of barring Comcast from interfering with its customer’s peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
use was reasonably ancillary to the effective performance of its statutorily-mandated authority. Instead, the FCC relied on a Congressional statement of policy and various provisions of the Communications Act—neither of which the Court found created “statutorily mandated responsibilities.” Additionally, by accepting the FCC’s argument, the court believed it would “virtually free the Commission from its congressional tether,” thereby providing the FCC an almost unbounded limit to impose regulations on Internet service providers.
Significance of the decision
The FCC Order was the Commission’s first attempt to impose rules requiring network neutrality among ISPs. But in a unanimous decision, the Court found that the FCC lacked the power to enforce these rules. Not only does this affect the administrability of the FCC’s current network neutrality rule, but it could also affect a wide variety of broadbandBroadband
The term broadband refers to a telecommunications signal or device of greater bandwidth, in some sense, than another standard or usual signal or device . Different criteria for "broad" have been applied in different contexts and at different times...
issues, such as ensuring ISPs do not block websites like Hulu or YouTube or enforcing ISP’s advertised broadband speeds.
Further, the court’s decision prompted the FCC to establish new rules regarding internet regulations. Because of the ruling in this case, these rules justify themselves in new ways, namely claiming direct authority through section 706 of the Communications Act, as well as ancillary authority through Title II and VI of the Act. While these justifications avoid the direct complaints raised in this case, it is not clear whether they would hold up on appeal.
Comcast's reaction
Comcast issued the following statement:The FCC's reaction
The FCC released the following statement regarding the Comcast v. FCC decision:The FCC’s new net neutrality rules
In December 2010, FCC approved new net neutrality rules. While these rules did not reclassify a broadband service as a communications service under the Title II regulation, it would forbid cable and DSL Internet service providers from blocking or slowing online service. It would also prohibit mobile carriers from blocking VoIP applications such as SkypeSkype
Skype is a software application that allows users to make voice and video calls and chat over the Internet. Calls to other users within the Skype service are free, while calls to both traditional landline telephones and mobile phones can be made for a fee using a debit-based user account system...
and blocking websites in their entirely, while restrictions are fewer than those on cable and DSL.
In January 2011, Verizon filed an appeal in the United States Court of Appeals for the District of Columbia Circuit, which was the same court that heard Comcast Corp. v. FCC, to overturn this new rule, although the new rules had not yet been in effect. Verizon brought this lawsuit because they were concerned by the FCC’s assertion of broad authority for sweeping new regulation of broadband networks and the internet itself, which Verizon believed was well beyond any authority provided by Congress to the FCC.
A few days after the filing by Verizon, MetroPCS
MetroPCS
MetroPCS Communications, Inc. , formerly known as General Wireless, Inc., is an American mobile phone service provider. It operates the fifth largest mobile telecommunications network in the US, with 8.9 million subscribers as of May 2011...
, which had already been accused of violating the new rules, also asked the same court to hear the challenge against the new rules.
See also
- Susan Crawford, Comcast v. FCC - "Ancillary Jurisdiction" Has to Be Ancillary to Something (2010)
- Stacey Higginbotham, "Comcast vs FCC: In Battle For Net Neutrality, Did the Courts Hand Comcast a Pyrrhic Victory?" (2010).
- William McQuillen and Todd Shields, "Comcast Wins in Case on FCC Net Neutrality Powers" (2010).
- Fred von Lohmann, "Court Rejects FCC Authority Over the Internet" (2010).
- Abigail Phillips, "FCC “Ancillary” Authority to Regulate the Internet? Don’t Count on It" (2011).