In the wake of a court decision earlier this week that invalidated some of its Internet regulatory authority, the Federal Communications Commission is moving forward with its ambitious National Broadband Plan. The agency said its plan will “connect all Americans to broadband, unleash innovation and investment,” and enable the creation of jobs.
Chairman Julius Genachowski said the court decision “does not change” the policy goals of the FCC’s plan, or its authority to do to. The decision, he said, “merely invalidated one technical, legal mechanism for broadband policy chosen by prior commissions.”
‘Common Carriers’
But some observers have questioned if the ruling affects portions of the agency’s ability to carry out its national plan. The FCC requires phone companies to act as “common carriers” so they treat all traffic fairly, and the agency has argued that it similarly has that authority for broadband data.
The court said the FCC needs explicit legal authority for this kind of regulation. The agency can appeal, and, alternatively or simultaneously, ask Congress for clearer rules. Another possibly is that the FCC can reclassify broadband as a telecommunications service.
On Tuesday, a panel of three U.S. Court of Appeals judges unanimously found that the FCC did not have the authority, under current classifications, to regulate Comcast’s practice of monitoring bandwidth use by its customers. In January, the same court had asked the FCC to specify which statutes gave it such regulatory authority.
In August 2008, the FCC first began receiving complaints that Comcast was monitoring data use and restricting bandwidth without notifying customers. Some customers said they were targeted because they used peer-to-peer applications like BitTorrent to share movies.
The issue gained momentum because Net-neutrality proponents saw it as a real-world instance of abuse resulting from bandwidth regulation based on use. There were also unsubstantiated claims that Comcast was restricting…