Hutchison: Court Decision Shows FCC Doesn't Have ‘Net Regulatory Authority

Senator Kay Bailey Hutchison (R-Tex.), ranking member of the
Senate Communications Committee, says the D.C. court's decision to throw out
the FCC's BitTorrent order against Comcast calls into question whether the FCC
has any Internet regulatory authority, while a top House Republican and others
warn the FCC not to reclassify broadband in response to the decision.

"This decision highlights what many already believed,
the FCC does not have authority to act in this area," Hutchison said in a
statement. "In light of this important court decision, policy makers should
assess whether there should be any regulatory role for the agency as it relates
to the Internet and how private companies manage their investment. It would be
wrong to double down on excessive and burdensome regulations, and I hope the
FCC chairman will now reconsider his decision to pursue expanded commission
authority over broadband services in current proceedings before the

Reply comments are due this week on the FCC's proposal to
expand and codify the Internet openness principles it was trying to enforce
when it found Comcast had violated them by impeding peer-to-peer traffic on its
network. Comcast has since modified the practice.

Joe Barton (R-Tex.), ranking member of the House Energy
& Commerce Committee warned against reclassifying broadband as a more
heavily regulated telecommunications service in an effort to establish clearer

"The D.C. Circuit's decision should mean that
litigation plays out to a logical conclusion and in the meantime, the FCC
should not reclassify information services as Title 2 services," Barton
said. "The guiding principle is already explicit in the 1996
Telecommunications Act, where the government is directed 'to preserve the
vibrant and competitive free market that presently exists for the Internet and
other interactive computer services, unfettered by federal or state
regulation.'", a network neutrality regulations
opponent, whose members include major telcos and
cable operators
, said the decision confines the FCC's Internet oversight
"to only where Congress has granted it express authority," and said
any push by groups like Free Press or Public Knowledge to have the FCC
reclassify broadband as a "regulated telephone service" would be an
attempt to circumvent the courts and Congress, not to mention "the most
convoluted, unworkable,  Rube Goldberg-ian, action imaginable."

"Today's unanimous and very thorough opinion in the Comcast
case makes clear that the FCC needs to focus on the important task of making
the promise of the National Broadband Plan a reality by spurring investment,
innovation and job growth, and turn away from calls to impose restrictive
regulations on broadband providers and the Internet ecosystem," said CTIA:
The Wireless Association, in a statement.

Verizon General Counsel Randal Milch's advice to Internet
users in the wake of the decision was not to worry. "Today's decision in
Comcast vs. FCC will have no impact on the experience of Internet users,"
he said. "Consumers are in the driver's seat in today's market-driven
Internet ecosystem, and their interests remain fully protected. The court
recognized that the FCC does have Title I ancillary authority over Internet
access.  In this case, the FCC simply failed to link its actions to its
statutory responsibilities.  The FCC's authority supplements the various
other consumer protection and competition laws that apply to all members of the
Internet ecosystem."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.