Hutchison: Court Decision Shows FCC Doesn't Have ‘Net Regulatory Authority

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Senator Kay Bailey Hutchison (R-Tex.), ranking member of the Senate Communications Committee, says the D.C. court's decision to throw out the Federal Communication Commission's BitTorrent order against Comcast calls into question whether the agency has any Internet regulatory authority.

Meanwhile, a top House Republican and others warn the FCC not to reclassify broadband in response to the decision.

"This decision highlights what many already believed, the FCC does not have authority to act in this area," Hutchison said in a statement. "In light of this important court decision, policy makers should assess whether there should be any regulatory role for the agency as it relates to the Internet and how private companies manage their investment. It would be wrong to double down on excessive and burdensome regulations, and I hope the FCC chairman will now reconsider his decision to pursue expanded commission authority over broadband services in current proceedings before the agency."

Reply comments are due this week on the FCC's proposal to expand and codify the Internet openness principles it was trying to enforce when it found Comcast had violated them by impeding peer-to-peer traffic on its network. Comcast has since modified the practice.

Joe Barton (R-Tex.), ranking member of the House Energy & Commerce Committee warned against reclassifying broadband as a more heavily regulated telecommunications service in an effort to establish clearer authority.

"The D.C. Circuit's decision should mean that litigation plays out to a logical conclusion and in the meantime, the FCC should not reclassify information services as Title 2 services," Barton said. "The guiding principle is already explicit in the 1996 Telecommunications Act, where the government is directed 'to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by federal or state regulation.'"

Netcompetition.org, a network-neutrality regulations opponent, whose members include major telcos and cable operators, said the decision confines the FCC's Internet oversight "to only where Congress has granted it express authority," and said any push by groups like Free Press or Public Knowledge to have the FCC reclassify broadband as a "regulated telephone service" would be an attempt to circumvent the courts and Congress, not to mention "the most convoluted, unworkable, Rube Goldberg-ian, action imaginable."

"Today's unanimous and very thorough opinion in the Comcast case makes clear that the FCC needs to focus on the important task of making the promise of the National Broadband Plan a reality by spurring investment, innovation and job growth, and turn away from calls to impose restrictive regulations on broadband providers and the Internet ecosystem," said CTIA: The Wireless Association, in a statement.

Verizon General Counsel Randal Milch's advice to Internet users in the wake of the decision was not to worry. "Today's decision in Comcast vs. FCC will have no impact on the experience of Internet users," he said. "Consumers are in the driver's seat in today's market-driven Internet ecosystem, and their interests remain fully protected. The court recognized that the FCC does have Title I ancillary authority over Internet access. In this case, the FCC simply failed to link its actions to its statutory responsibilities. The FCC's authority supplements the various other consumer protection and competition laws that apply to all members of the Internet ecosystem."

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