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Craig Parshall, General Counsel

 

COMCAST CASE: THE FCC’S TITANIC?

April 14, 2010 

Last week’s court decision in Comcast v. FCC may have threatened to sink the Federal Communications Commission’s plans to regulate the Internet, an issue that may well be the most important free press issue of our day. The U.S. Court of Appeals for the D.C. Circuit handed down its decision last week in Comcast v. FCC. The case reviews the actions of the Federal Communications Commission, then under the leadership of FCC Chairman Kevin Martin, which had ruled that Comcast had illegally blocked certain “peer-to-peer” file-sharing among its Internet customers. Comcast had argued that such file-sharing applications demand huge amounts of bandwidth, which impeded the web use of other of its customers, and that its action reflected a simple business decision. The Court of Appeals however has now ruled that the Federal Communications Commission lacked the regulatory jurisdiction in the first place to issue its order against the big Internet service provider. Is this just a minor scrape to the FCC’s hull? Hardly. Now, absent Congressional action to grant the FCC specific authority over the Internet (or a successful Supreme Court reversal) the case may prove to be the FCC’s Titanic. One of the boldest initiatives of President Obama’s new FCC Chairman, Julius Genachowski, has been the “Open Internet” proceeding (a.k.a. “net neutrality”) launched recently. In it, the Commission laid out a proposed rule giving that federal agency sweeping power over the “network management” practices of Internet service providers. The big telecom companies like AT&T yelled foul. So did conservative and libertarian groups, and media watchdogs that were justifiably leery about the government’s desire to become an ever-present traffic cop on the digital highway.

On the other hand, civil liberty groups like the ACLU, and the National Hispanic Media Coalition, believing that federal oversight would protect, rather than limit, freedom of expression, cheered the FCC’s proposed plan. So did Google, which is ironic given Google’s prior experience in cooperating with web-search suppression in China, and allegations of anti-Christian censorship in the U.K. and the U.S. by the huge search engine enterprise. Also interesting is the fact that by all appearances, Google would be unregulated under these proposed rules of the FCC.

But the Comcast court decision may have changed all that, unless Congress takes action to supply the FCC’s lack of authority over the web. In my filing on behalf of NRB in the “Open Internet” proceeding, I made the point I will make again here. In the FCC’s 89-page proposed Internet regulation plan, there was barely any mention of the most pressing issue of all in this debate over who (or what entity) will govern the web: namely, how can we best insure freedom of opinion and viewpoint over the Internet? The FCC has already opined that the First Amendment arguably does not apply to Internet practices. Here at NRB we urged the FCC to halt this Internet regulation proceeding, and then launch a thorough study regarding the extent to which freedom of expression, including religious expression, is being threatened under the current practices of Internet service providers – or for that matter – the degree to which a heavy-handed federal government takeover of the web could threaten all of us.