Originally published: November 2, 2009
Last updated: November 2, 2009 - 10:38pm
With the release of the Federal Communications Commission's new Internet nondiscrimination proposals (that is, network neutrality), one vexing question continues to vex. Does the FCC have the legal authority to regulate access to the Internet? The issue came up again this week, and not just because of the net neutrality proceeding; Comcast, which is suing the FCC for its sanctions against the ISP for last year's P2P throttling, told a federal court hearing the case that the answer is no. Comcast's network management practices "were designed in good faith to manage high volumes of traffic to ensure that all customers could use and enjoy their High-Speed Internet services," the cable giant explained to the United States Court of Appeals for the District of Columbia Circuit on Monday. "Nonetheless, the agency's rhetoric regarding the merits of the practices cannot solve the lack of any pre-existing binding legal norm governing those practices or the related legal questions presented in this Court." The company is scheduled to make its oral argument in the case in early January. The conundrum comes down to this: does the FCC have any legal power to step in if it finds that an ISP is unnecessarily interfering with an application (like BitTorrent) that millions of consumers use to share files on the Internet? The Commission and its supporters say that Congress gave the agency the broad authority it needs to do the job. Opponents say those powers are nowhere to be found.
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