The U.S. Court of Appeals for the D.C. Circuit recently ruled that the Federal Communications Commission (FCC) lacked jurisdiction over Comcast’s Internet service. Comcast Corp. v. FCC, Docket No. 08-1291 (D.C. Cir. April 6, 2010). Therefore, the FCC lacked authority to impose upon Comcast non-discriminatory obligations regarding such services. Meanwhile, as this case wound through the courts, the FCC issued an ambitious National Broadband Plan to increase broadband access, speed, and adoption. As the FCC seeks congressional action to implement many of the plan’s recommendations, it might well add a threshold request: clarify the FCC’s authority over Internet services.

In 2007, Comcast was challenged by several Internet service subscribers who claimed that Comcast interfered with the subscriber’s use of applications for transferring large files. These subscribers alleged that such interference violated the FCC’s Internet policy statement issued in 2005, in particular the FCC’s stated principle (neither a statute nor rule) that consumers using Internet services (i.e., cable modem or dsl) should have the unfettered right to “run applications and use services of their choice.” Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, FCC 05-150, 2005 WL 2347773 (Sept. 23, 2005). In response to the subscribers’ petition, the FCC found that Comcast contravened the FCC policy. Comcast then brought suit alleging that the FCC lacked jurisdiction over these services. The D.C. Circuit agreed.

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