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Comcast wins U.S. Appeal Court case, denies FCC oversight authority

By | April 6, 2010, 10:04am PDT

Summary: The U.S. Appeals court rejected the FCC’s jurisdiction claim of managing Network Internet traffic

A U.S. appellate court rejected the FCC’s jurisdiction claim of managing Network Internet traffic which Comcast began doing last year. Reuters published the court decision earlier Tuesday. Comcast filed suit last year in 2008 claiming the FCC had no authority over its network management practices, which came to light when a Comcast Internet subscriber noticed service degradation.

The U.S. Court of Appeals for the District of Columbia said the FCC failed to show it had the necessary authority to impose such restrictions on network management.

“It relies principally on several congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create ’statutorily mandated responsibilities,’” the three-judge panel said.

“The commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast’s network management practices,” they said.

Comcast filed suit when the FCC claimed it had the right to regulate the company’s Internet network management in 2008. Comcast complied with the FCC’s decision in the interim. Comcast Internet subscribers may notice changes if the FCC does not appeal.

The FCC may appeal the Supreme Court. Most analysts believe the Commission will do so. The FCC’s response to the Courts decision:

Federal Communications Commission Spokesperson Jen Howard:

“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.

“Today’s court decision invalidated the prior Commission’s approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.”

Additional resources:

FCC’s National Broadband Plan: Net Neutrality, R.I.P.

FCC releases ‘Connecting America: The National Broadband Plan’

FCC may set aside free wireless spectrum for Internet broadband

FCC, Comcast, others testify before Congress: NBC Universal-Comcast merger

Net Neutrality: Why the Internet will never be free. For anything. So get used to it

AT&T to FCC: Open to Net Neutrality ideas - with conditions

Net Neutrality: You own the Internet - make sure it becomes Law

Internet: A threat to government or the other way around?

Electronic Frontier Foundation links net neutrality to copyright

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Topics

FCC, Comcast Corp., Federal Government, Government, Doug Hanchard

Disclosure

Doug Hanchard

http://government.zdnet.com/?page_id=5774

Biography

Doug Hanchard

Doug is the principal of Rapid Response Consulting, an advisory group that integrates ICT solutions. He has worked at some of the largest telecommunications firms in Canada, including Bell Canada, Telus and AT&T and is a guest lecturer for several universities and associations. He serves on several advisory boards in Canada and the United States.

Starting with a new national ISP in 1993 in sales, positioning internet access, web sites and network services began the path of telecommunications technologies from the early Bulletin Board Services (BBS) to the first web pages for commercial clients.

Became the National Data Network Service Manager for Frame Relay and Internet access for AccTel Enterprises which was acquired (after 3 mergers already) by AT&T Canada. Interested in how marketing could expand service availability, he moved to Telus to become the Frame Relay / ATM Product Manager and expanded the network across Canada. In 2002 he went to Bell Canada becoming a Solution Architect to get back to his passion for technology working with enterprise clients. In 2006, became the Director of R&D and Senior Solution Architect for Bell Canada Security Solutions Inc, developing I.P. based physical and logical security platforms and ICT services.

This position created new commercial concepts such as Crisis and Disaster technology solutions required for emergency use after an event occurred. He designed interoperable technologies and application combinations allowing any to any I.P. service through landline, broadband, satellite and wireless technologies to be deployed anywhere

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RE: Comcast wins U.S. Appeal Court case, denies FCC oversight authority
efsane Updated - 11th Apr 2011
Well done! Thank you very much for professional templates and community edition
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A Good Ruling
Richard B 6th Apr 2010
To me its all about private business. Comcast has every right to set the TOS for it network. If it was me I would send the cable guy out it a monthly refund check and a tool need to disconcert the connection.
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This decision set a presidents for all providers not just for Comcast
rblanc@... Updated - 6th Apr 2010
Summary: If one can do it, then many will follow. This is a gateway that will allow the internet to be managed and filtered by these providers.

The internet is like a federal highway. This highway affects commerce, science, education and innovation to name a few world-wide and within a virtual community. If Comcast can change the rules on how it can filter or throttle this highway, for its financial gain, then a usable internet access will become for club members only. The internet is a public asset and should remain open. Comcast nor do any of these internet providers have funded nor own this highway. The FCC has every right (in its people's interest)to set standards and policy keeping the internet open. The FCC meddling with the Comcast's managed networks in this situation is surely justified when you see what is being done. One way or the other, this will in no doubt set a presidents for internet providers. Internet access needs to be publicly regulated - the corporate culture wants to dominate and control everything. It is all for profit. Bill Clinton allow the FCC to sell our public airways to the highest bidder - lets not do the same with the internet. Interstate commerce is Federal concern.

Bandwidth is also like public airways, it belongs to the public. Bandwidth restrictions solutions should be regulated by a public body. If Comcast or any other company wants to manage its networks, then let it develop its own network and not use a public asset for its own financial gain.

On another topic, ATT does not have the right to sell unlimited bandwidth to its prime subscribers - this impacts access to non subscribers. With more hand held devices downloading streaming media, this is becoming an increasing issue.

Rick
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What's preventing you from switching to a different vendor?
LBiege 6th Apr 2010
I don't see why government has to step in while the customers can vote on it via their own feet.
0 Votes
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The fact is
dev-null 7th Apr 2010
Some people don't have (m)any choices. Where I am, in a city of > 100,000, I have Time Warner Cable (roadrunner), dial-up, HughesNet, or very expensive point to point wireless. No FIOS, no DSL, etc. Many have even fewer choices than I do.
0 Votes
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Simplified battle
reziol 7th Apr 2010
Comcast is throttling access to Time-Warner sites. If this is allowed, people leave Comcast to go to Time-Warner as their provider. T-W figures, if CC can do it, so can they, and T-W then starts throttling access to Comcast provided media. Where does the customer now go to get un-throttled access? Now multiply this by ten- and hundred- fold providers, and you've got DSL and cable modems spitting out data no faster than a 56K dial-up modem.

Is that what you really want? Or do you think that maybe the FCC should have some regulatory oversight to access? Not content oversight (that's censorship) but the ability to access content in an unrestricted way?
0 Votes
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This is absolutely wrong!
windozefreak 7th Apr 2010
There are four carriers in my area here in florida. However, the county governments have set up carrier districts. If you live in one distric, you cannot get cable from a carrier in another district. Yes, they sell that as competitions. Phewey!!
0 Votes
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There is no 'different vendor'
barence773 7th Apr 2010
In my neighborhood anyway, there is no 'different vendor.' Sure, I can dump Time Warner cable & Roadrunner with it, and go with Verizon. But you can bet that if one provider does it (bandwidth throttling), they all will.
0 Votes
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You can't switch
still not nice 7th Apr 2010
Local governments carve out franchise territories whereby each cable company is virtually guaranteed a monopoly.

Where I'm at, there's Cox Communications or DirecTV (which has awful reception) and that's it.

So let's cut the bogus trickle down economics choice, k?

sad
0 Votes
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Actually
Normal_z 7th Apr 2010
Very well, please move the message to its proper location as a response to "This decision set a presidents for all providers not just for Comcast"
Thank You
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Comcast in general.
gwy1932@... 7th Apr 2010
Comcast had my County sewed up until Verizon was given permisssion to operate here. From the start, Comcast did anything that they wanted to do and no one could do anything about it. They pulled channels from their lineup without any notification to their cusstomers. They had no consideration for the customers who had signed up with them from the beginning of operation here. Now they wonder why they lost so many customers to Verizon. I do not care what problems or obstacles Comcast have to face. I would not go back to Comcast if they offered it to me FREE for life. So FCC, let 'em have it with both barrels.
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Not publicly owned.
Hates Idiots 7th Apr 2010
when 100% of the Internet is owned by the government it can be run as the government sees fit.

Comcast owns it's part of what you are calling the Internet and has the freedom to control the use or restrict the abuse of its property.

I for one support Comcasts efforts. It is not fair that 10% of all Internet users use 90% of all services.

Why should I pay the same price as the home user running a web site out of his basement that uses 100 times the bandwidth of my entire family and suffer the slowdowns his usage put on the entire neighborhood?

He can deal with his bandwidth being managed or he can pay extra for a dedicated circuit.
0 Votes
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Comcast is not the internet
PinkFloydYoshi 7th Apr 2010
Comcast is a carrier. It is not the internet. The internet IS a public asset and Comcast merely provide the keys. If you don't hit restrictions, then you are already paying too much, you should be using dial-up. Broadband and cable is meant for people who actually use the internet for streaming, downloading, VoIP and gaming. If all you are doing is checking your email or reading the odd Wikipedia article, you have fallen victim to lucrative advertising.

I pay extra to make sure I use a FUPless service (no restrictions at all) to make the internet usable. I cannot use BBC iPlayer or any of the fast-growing magnitude of streaming services and online games if I have restrictions in place.

People should be calling for the death of the fair usage policy and what Comcast call "reasonable network management" but it seems that there are millions of very very stupid users who only use it to check their email.

If a carrier can't cope with demand, it's time to (and this might come as a shock to some) actually invest in that network infrastructure to improve service. If a carrier cannot afford to do this, then it should reduce the monthly rate at which the customers that don't take advantage of the internet pay, and keep the original and higher cost set for what I would go as far as to call normal users of the internet. TalkTalk are offering free broadband to existing customers on a deregulated exchange across the UK at the moment, so this is 100% feasible.

Excessive usage shouldn't come in to it, just because I fired up World of Warcraft and there was a big update that used the bittorrent protocol (it does) to download, any management is a carrier denying me (a paying customer) access to services.

I'm going to enjoy the day when service providers such as Blizzard and Google actually demand ISPs pay up for lost business due to network management. Service providers support costs are in almost all cases because an ISP is all of a sudden imposing some arbitrary restriction, and if the customer doesn't like that even though it's what is going on, then it's a lost customer.

The judges who oversaw this case were all inexperienced, non-technically minded, uneducated morons who should be restricted from taking part in any case that involves the internet and it's businesses. The FCC as a regulator should be allowed unlimited powers to ensure the internet is neutral and protocols are not discriminated, otherwise it's existence is useless.
0 Votes
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That's a load of bull
still not nice Updated - 7th Apr 2010
Why should I pay the same price as the home user running a web site out of his basement that uses 100 times the bandwidth of my entire family and suffer the slowdowns his usage put on the entire neighborhood?

Why should we continue to subsidize a local monopoly with an exclusive franchise that refuses to invest in a new fiber optic infrastructure to handle that bandwidth?

Why should we trust a service that claims "unlimited internet" and then lies about it by capping out your internet usage at 250GBs a month?

When you answer those questions, then I'll be willing to listen.
0 Votes
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RE: A Good Ruling
arjay67 8th Apr 2010
Spoken like a true Comcast employee. Dishonest, lazy, extortive Comcast.
0 Votes
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RE: Comcast wins U.S. Appeal Court case, denies FCC oversight authority
benoddo 7th Apr 2010
This is just another of the government's forfeitures of regulating U.S businesses. Welcome to the new age or "Robber Barons" all with the government's blessing.
0 Votes
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This decision won't deter the FCC nor Obama nor congress...
adornoe@... 7th Apr 2010
But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.

Translation:

Congress has been getting away with writing and passing unconstitutional bills, and Obama has been able to bypass any roadblock thrown at him by using executive directives, and the EPA has "decided" that they will implement their environmental policies while disregarding the lack of laws authorizing them to do so.

When dictatorial policies aren't challenged, then those with the power will just be emboldened to act more dictatorially.

Expect the FCC to enact their own policies to control the broadband from Comcast and others in the near future. The courts aren't a concern to those that are drunk with power. Anything can be rationalized as being "for the general good" and there are too many people who aren't capable of thinking beyond the surface of such statements and won't be able to do any analysis about the consequences of such actions. Ignorance brings the corrupt into power.
0 Votes
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That's exactly what the FCC tried to do here and failed.
lfmorrison 7th Apr 2010
"...Expect the FCC to enact their own policies to control the broadband from Comcast and others in the near future..."

The FCC had tried to enact their own policies to control the broadband from Comcast. That's what this court case was all about. The result: The court backed Comcast because it found that the FCC didn't have jurisdiction on its own to enact its policies.
0 Votes
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What I meant was through "executive order"...
adornoe@... 7th Apr 2010
which would still be illegal, but if they're allowed to do it, the policies, which would be overseen by the FCC, would take effect without the courts being involved unless Comcast and others were able to get the courts to put a hold on the policies until their cases against the executive orders are heard.
0 Votes
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"The general good..."
slingzenarrowzuvowtrayjissforchin Updated - 7th Apr 2010
adornoe:

Your post is a bullseye. The most insidious and pernicious attacks on human liberty are always accompanied by a siren song of platitudes about the common good and the general welfare.

Until people learn to recognize "For the good of all..." as a smokescreen whose real meaning is "For the good of some at the expense of everyone else", there will never be any limit on the degree to which the state interferes with life, liberty, and property.
0 Votes
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Actually
Normal_z 7th Apr 2010
Comcast did fund the portion of the network their subscribers are connected to. However, in some cases portions of their network have been subsidized, either by direct funding or the granting of an exclusive franchise, by various public agencies and those subsidized portions should be subject to regulation.
0 Votes
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RE: Comcast wins U.S. Appeal Court case, denies FCC oversight authority
jedikitty@... 7th Apr 2010
That's the first good thing I've ever heard about Comcast happy Congrats on the ruling!
0 Votes
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RE: Comcast wins U.S. Appeal Court case,
gwy1932@... 7th Apr 2010
There isn't too much to hear "about Comcast" that is good.
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RE: Comcast wins U.S. Appeal Court case, denies FCC oversight authority
AlzVoice 7th Apr 2010
GOOD NEWS.

So let me get this straight: people are complaining about a lack of competition and that we don't get enough bandwidth, but they think inserting more of the government to limit how the carriers use bandwidth is going to help???

It's amazing how people are duped. Just like the "Employee Free Choice Act" is not about free choice, these rules are not about "net neutrality." The rules are about CONTROL.

Allowing the government to get involved will reduce competition. No matter what, the government will drive up costs overall. And when they squeeze the carriers or put in odd rules, some of the carriers will have to be bailed out. It happens every time.

Anyways, good news!
0 Votes
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You got it backward buddy
Altotus 7th Apr 2010
No clue
0 Votes
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I agree
still not nice 7th Apr 2010
A knee-jerk reactionary, totally ignorant of the situation.
0 Votes
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RE: Comcast wins U.S. Appeal Court case, denies FCC oversight authority
Doc@... 7th Apr 2010
"F" the FCC!
They don't protect anyone!
While we're at it, lets clarify Article I, section 8 of the U. S. Constitution's General Welfare Clause to fall in line with the spirit of the Constitution as expressed in the 9th and 10th Amendments.
0 Votes
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RE: Comcast wins U.S. Appeal Court case, denies FCC oversight authority
jimiznhb 7th Apr 2010
gOOd for BIG BUSINESS...
BAD for CONSUMERS!!!!
There's OUR Government WORKING AGAINST US!!!
0 Votes
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RE: Comcast wins U.S. Appeal Court case, denies FCC oversight authority
efsane Updated - 11th Apr 2011
Well done! Thank you very much for professional templates and community edition
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