Comcast vs FCC DC Circuit Court Ruling of 04-06-2010

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 8, 2010 Decided April 6, 2010No. 08-1291C

OMCAST

C

ORPORATION

,P

ETITIONER

v.F

EDERAL

C

OMMUNICATIONS

C

OMMISSION AND

U

NITED

S

TATES OF

A

MERICA

,R

ESPONDENTS

NBC

U

NIVERSAL

,

ET AL

.,I

NTERVENORS

On Petition for Review of an Orderof the Federal Communications Commission

Helgi C. Walker

argued the cause for petitioner. Withher on the briefs were

Eve Klindera Reed

,

Elbert Lin

,

David P. Murray

,

James L. Casserly

, and

David H. Solomon

.

Howard J. Symons

argued the cause for intervenorsNational Cable & Telecommunications Association

and

NBCUniversal. With him on the briefs were

Neal M. Goldberg

,

Michael S. Schooler

, and

Margaret L. Tobey

.

Richard Cotton

entered an appearance.

2

Kyle D. Dixon

was on the brief for

amici curiae

Professors James B. Speta and Glen O. Robinson and TheProgress and Freedom Foundation in support of petitioner.

Austin C. Schlick

, General Counsel, FederalCommunications Commission, argued the cause forrespondents. With him on the brief were

Catherine G.O'Sullivan

and

Nancy C. Garrison

, Attorneys, U.S.Department of Justice,

Joseph R. Palmore

, Deputy GeneralCounsel, Federal Communications Commission,

Richard K.Welch

, Deputy Associate General Counsel, and

Joel Marcus

,Counsel.

Daniel M. Armstrong III

, Associate GeneralCounsel, entered an appearance.

Marvin Ammori

argued the cause for intervenors FreePress, et al. in support of respondents. With him on the brief were

Henry Goldberg

,

Harold Feld

, and

Andrew JaySchwartzman

.

John F. Blevins

was on the brief for

amici curiae

Professors Jack M. Balkin, et al. in support of respondents.Before: S

ENTELLE

,

Chief Judge

, T

ATEL

,

Circuit Judge

,and R

ANDOLPH

,

Senior Circuit Judge

.Opinion for the Court filed by

Circuit Judge

T

ATEL

.

T

ATEL

,

Circuit Judge

: In this case we must decidewhether the Federal Communications Commission hasauthority to regulate an Internet service provider’s network management practices. Acknowledging that it has no expressstatutory authority over such practices, the Commission relieson section 4(i) of the Communications Act of 1934, whichauthorizes the Commission to “perform any and all acts, makesuch rules and regulations, and issue such orders, not

3inconsistent with this chapter, as may be necessary in theexecution of its functions.” 47 U.S.C. § 154(i). TheCommission may exercise this “ancillary” authority only if itdemonstrates that its action—here barring Comcast frominterfering with its customers’ use of peer-to-peer networkingapplications—is “reasonably ancillary to the . . . effectiveperformance of its statutorily mandated responsibilities.”

Am. Library Ass’n v. FCC

, 406 F.3d 689, 692 (D.C. Cir. 2005).The Commission has failed to make that showing. It reliesprincipally on several Congressional statements of policy, butunder Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create “statutorily mandatedresponsibilities.” The Commission also relies on variousprovisions of the Communications Act that do create suchresponsibilities, but for a variety of substantive andprocedural reasons those provisions cannot support itsexercise of ancillary authority over Comcast’s network management practices. We therefore grant Comcast’s petitionfor review and vacate the challenged order.

I.

In 2007 several subscribers to Comcast’s high-speedInternet service discovered that the company was interferingwith their use of peer-to-peer networking applications.

See

Peter Svensson,

Comcast Blocks Some Internet Traffic

,A

SSOCIATED

P

RESS

, Oct. 19, 2007. Peer-to-peer programsallow users to share large files directly with one anotherwithout going through a central server. Such programs alsoconsume significant amounts of bandwidth.Challenging Comcast’s action, two non-profit advocacyorganizations, Free Press and Public Knowledge, filed acomplaint with the Federal Communications Commissionand, together with a coalition of public interest groups andlaw professors, a petition for declaratory ruling.

Compl. of