Federal Appeals Court Rules against FCC on Net Neutrality

In a very disappointing decision today from the United States Court of Appeals for the District of Columbia, the Court ruled that the Federal Communications Commission (FCC) may not prevent broadband providers from discriminating against certain types of Internet traffic. This is a significant setback for the FCC, which only recently released its ambitious National Broadband Plan to ensure that every American has access to high-speed Internet. President Obama has repeatedly affirmed his commitment to protecting net neutrality as well.

In 2007, the FCC ordered the Comcast Corporation to stop blocking subscribers from accessing BitTorrent, a free, open source peer-to-peer file-sharing application, on the grounds that Comcast was violating the FCC’s Internet Policy Statement FCC 05-151 on broadband Internet access. Comcast initially complied with the Order, but later petitioned for review.

Because the FCC has no express statutory authority to regulate an Internet service provider’s network management practices, the agency needed to prove that barring Comcast from blocking access to BitTorrent was “reasonably ancillary to the…effective performance of its statutorily mandated responsibilities.” The Court found that the FCC failed to make this showing.

Markham Erickson, Executive Director of the Open Internet Coalition of which AALL is a member, said today, “The Court’s sweeping decision eliminates the Agency’s power to either enforce the Internet Policy Statement or possibly to promulgate new open Internet rules to protect consumers and small businesses under Title I. As a result, 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.”

As explained in our Network Neutrality Issue Brief, net neutrality is very important to AALL because law librarians are providers, creators and users of digital information. Without net neutrality, law libraries may not be able to afford the necessary fees for access to the “fast lane,” preventing their users from having a consistent and reliable way of accessing important online legal information.

The Government Relations Office will continue to monitor this important issue and keep you updated as developments occur.

[Posted by Emily Feldman]

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