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Comcast vs. FCC

Comcast vs. FCC

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Published by Fortune
[T]he Commission’s attempt to dictate the operation of an otherwise unregulated service based on nothing more than its obligation to issue a report defies any plausible notion of “ancillariness.”
[T]he Commission’s attempt to dictate the operation of an otherwise unregulated service based on nothing more than its obligation to issue a report defies any plausible notion of “ancillariness.”

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Published by: Fortune on Apr 07, 2010
Copyright:Attribution Non-commercial

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01/27/2013

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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 

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