Much already has been written about the D.C. Circuit’s decision yesterday in the so-called Comcast/BitTorrent case (Comcast Corp. v. FCC). Some important facts are at risk of being lost in the discussion.
The Comcast/BitTorrent case began in 2007, when Internet users discovered that Comcast was secretly interfering with its customers’ lawful use of BitTorrent and other peer-to-peer applications. After first denying that the practice existed, Comcast eventually agreed to end it. In 2008, the FCC issued an order finding Comcast in violation of federal Internet policy as stated in various provisions of the Communications Act and prior Commission decisions.
In yesterday’s ruling, the U.S. Court of Appeals for the District of Columbia Circuit held that the Commission’s 2008 order lacked a sufficient statutory basis, because it did not identify “any express statutory delegation of authority” for putting an end to Comcast’s undisclosed interference with its own customers’ communications. That’s an important ruling: It undermines the legal approach the FCC adopted in 2005 to fulfill its statutory duty of being the cop-on-the-beat for 21st Century communications networks.
Does the FCC still have a mission in the Internet area? Absolutely. The nation’s broadband networks represent the indispensable infrastructure for American competitiveness and prospects for future job creation, economic growth, and innovation. The Court did not adopt the view that the Commission lacks authority to protect the openness of the Internet. Furthermore, in 2009, Congress directed the agency to develop a plan to ensure that every American has access to broadband. Just three weeks ago, the Commission released its National Broadband Plan. The Plan contains more than 200 recommendations for bringing high-speed service to underserved individuals and communities, and using broadband to promote American competitiveness, education, healthcare, public safety, and civic participation.
The Comcast/BitTorrent opinion has no effect at all on most of the Plan. Many of the recommendations for the FCC itself involve matters over which the Commission has an “express statutory delegation of authority.” These include critical projects such as making spectrum available for broadband uses, improving the efficiency of wireless systems, bolstering the use of broadband in schools, improving coordination with Native American governments to promote broadband, collecting better broadband data, unleashing competition and innovation in smart video devices, and developing common standards for public safety networks.
At the same time, yesterday’s decision may affect a significant number of important Plan recommendations. Among them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy. The Commission must have a sound legal basis for implementing each of these recommendations. We are assessing the implications of yesterday’s decision for each one, to ensure that the Commission has adequate authority to execute the mission laid out in the Plan.