Court: FCC Cannot Stop Comcast Internet Throttling

In what could be a blow to the Federal Communication Commission’s (FCC) Net Neutrality and National Broadband Plan initiatives, the United States Court of Appeals for the District of Columbia has ruled that the FCC does not have the authority to force Internet providers to grant equal treatment to all traffic traversing their networks.

Comcast Corporation v. Federal Communications Commission and United States of America hinged on whether or not the FCC, “has authority to regulate an Internet service provider’s network management practices.” The FCC was attempting to stop Comcast from interfering with its customer’s use of peer-to-peer networking applications.

The FCC, which admitted that “it has no express statutory authority over such practices,” had based its argument on section 4(i) of the 1934 Communications Act, which allows the FCC to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”

In its decision (PDF), the Court wrote that the FCC “has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any ‘statutorily mandated responsibility.’”

Expect an appeal.

Via the LA Times

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  1. 0
    Arell says:

    I would like to think that free markets would work it out, that competition would mean that ISPs wouldn’t screw us over by blocking or slowing content.  But the truth is, it probably wouldn’t work that way.  A lot of people don’t realize this, but well over 60% of the country doesn’t have "options" for service providers.  Like, in my area, there’s only one broadband provider.  Other areas of the US are dominated by one of the big companies, they’re territorial.  Basically, they can do whatever the hell they want and most of us couldn’t do a damn thing about it, except just stop getting internet service.

    Plus, you just know that internet providers belonging to a parent company that has invested interest in certain views or opinions (like the parent company that also owns FoxNews), would love nothing more than to slow down the speeds of content of other views or opinions, or that criticises them.  We already saw it once with AOLTimeWarner.  Several years ago, they blocked an email that was circulating amongst their customers that spoke of the company in a bad light.

  2. 0
    EvilTikiMan says:

    I honestly dont know whos side to take on this, and I am glad I dont. I see no reason to side with either. People say that throttling internet speed = bad, but you know deep down that it does make some sense towards ensuring that everyone gets a Mostly equal amount of banwidth. So what if you have to wait a few more minutes to download something! You can find other things to do. We need to get rid of this desire for instant gratification. On the flip side as much as we dont want the FCC to censor media (as we often believe they will do if given the chance) their role is undeniably important in  helping to make sure that private companies dont go to far in their treatment of the general public.

    We all know that the root of any of these kinds of problems is that there are slimeballs in the system (whatever it may be) who have no problem in manipulating the system to fuel whatever drives them. Greed (being most prevalent), zealotry, desire for control, and so on.

    So long as we have access to the internet and are not being cheated and squeezed for our money, that is what matters, and it is up to us to monitor and control it through responsibility and reason.


    The true American is one that does not let themselves become polarized in their party affiliations; they stay around the middle and listen to the word of both.After all the middle is created by two extremes, and we all know that you dont follow a crazy person.

  3. 0
    sharpshooterbabe says:

    I see the FCC wanted one thing from this: money. I’m wondering if  and only IF they had won the court, then would they have gotten money for it? I’m sure. But really? I don’t have cable, but I don’t watch much TV. Too busy. But I do have AT&T for internet. They haven’t failed me yet for the internet.



    "It’s better to be hated for who you are, then be loved for who you are not." – Montgomery Gentry

  4. 0
    jedidethfreak says:

    No, there is not.  Telecommunications encompasses telephone, radio, television and the internet, amongst other ways for people to communicate.

    You KILL Vampires. You don’t DATE them.

  5. 0
    foolkiller79 says:

    I can’t accept your pessimistic view on elections and the control of the people.  If I did I would declare the republic as being a failure.  Things are bad on all sides, but I refuse to believe that this republic can’t be restored peacefully.


    GameDrunk – Celebrating our two greatest passions.

  6. 0
    ZippyDSMlee says:

    Well unless if its not local your vote means squat in this day and age as the higher you get in government the more insulated you are even if you are forced out or do not get reelected it dose not hurt you much if at all….

    Tho it would be nice if the FCC or whoever took more time to get the public’s opinion then gain the public is not much smarter than a mob……

     blah damned if you do damned if you don’t….

    Until lobbying is a hanging offense I choose anarchy! CP/IP laws should not effect the daily life of common people!

  7. 0
    foolkiller79 says:

    Looking deeper through the documents referenced in the ruling, it does seem the FCC has had a poor defense.  The ruling even points out this was a procedural mishap.  They defended their actions as being an ancillary authority granted via the 1934 Communications Act, but in 2002 the FCC themselves, via the 2002 Cable Modem Order, declared that high speed Internet access was neither a telecommunications nor a common carrier service.  The move then was to grant themselves further regulatory powers over high speed Internet that wasn’t limited by the Communications Act. 

    So, it appears that the FCC screwed themselves on two fronts: 1) Claiming jurisdiction granted by an act that they have declared does not cover this field. 2) Allowing this to be defined as network management, which allows Comcast to make it sound as if their goal was to prevent a handful of users from creating unequal access for everyone else (true or not they were given that opening). 

    Based on this I do believe that this likely won’t limit their ability to move forward with their Net Neutrality or Broadband plans, assuming they don’t mix up their defense again.  That said, I am still in favor of those things being done in an open debate by officials who have to answer to me if they screw things up, not behind closed doors by a group of guys appointed by the president.

  8. 0
    ZippyDSMlee says:

    So its more the FCC failed to coherently explain the situation?

     The trouble with network management when it effects more than one user using the network…… this should be looked at that the network is unfairly managing its network…. when the data flow is only on the network there should not be a problem but when users go outside the network IE to the internet thats when network mangiment ends….. at elast IMO….

    Until lobbying is a hanging offense I choose anarchy! CP/IP laws should not effect the daily life of common people!

  9. 0
    foolkiller79 says:

    Except what Comcast was doing fell under the definition of network management within their own network.  They were not affecting the Internet outside of their own system. 

    That isn’t to say that your interpretation is wrong, but in reading the court ruling they are clearly discussing Comcast network management, and that the FCC failed to show how that falls under their mandate.  The FCC admit that they do not have authority over such practices and then tried to argue it as an ancillary authority granted by the Communications Act, but failed to do so. 

    Reading more into the court ruling I did find something interesting on page 5.  Comcast complied with the original order.  They are merely petitioning after the fact to challenge the FCC.

  10. 0
    ZippyDSMlee says:

    ya but the FCC has the power to regualte public boradcasts and tleecomunications and that pretty much defines the internet to some degree.


    It should be a no brainer that they can use the telecomunicatin rules in place to control ISPs…..

    Until lobbying is a hanging offense I choose anarchy! CP/IP laws should not effect the daily life of common people!

  11. 0
    jedidethfreak says:

    Rural areas usually have only one choice for telecommunications, and you’re lucky to get internet.  My grandmother, who lives five miles away from me, doesn’t even have one meg on her DSL connection (I think it’s 512k), and she and I only have the one provider to choose from.

    You KILL Vampires. You don’t DATE them.

  12. 0
    Austin_Lewis says:

    Personally, I like TimeWarner.  They’ve always done right by me, and the one time they failed me, it wasn’t even their fault.  The worker they sent out at first (a sleazy guy, to say the least) brought out parts that he knew to be non-functioning, then claimed he would come back. That night, he closed out the ticket.  The next day, before I even left the house to take my child to school, TimeWarner sent over a different employee who brought the parts needed, fixed everything in about 20 minutes, and then left.  Incidentally, this is the same guy who set up my house’s internet and digital cable when I first moved into it.  Oh, and about 3 business days later, they sent me a card (as in a hallmark style card) saying they were sorry they had let me down.  No joke.

    I’ve never seen a major city/state (or even a city with population of more than 20,000) where you didn’t have two choices, and most of the time, TimeWarner is one of the choices.  I’d advise using TimeWarner, but that’s just me.

  13. 0
    hellfire7885 says:

    Honestly, I find AT&T to be the better of the two. They handled installation and helped sync the new remotes with the TVs, and have replaced our router both times it died.

    When we had Comcast we didn’t get much help andhad to supply our own router if we wanted it on more than one PC

  14. 0
    tallimar says:

    nationally, there’s about 3 ISP services available, Comcast, AT&T, and Time-Warner(AOL) and it’s these guys that service nearly the entire US (thus an oligopoly).  unfortunately at the local level, one’s really lucky to even be able to choose between 2 providers (usually AT&T or Comcast in the midwest), but many places that arent large cities, there’s only one broadband provider if there’s any at all.

    as far as this story goes, im up in the air about it.  i know that both sides are notorious for playing dirty (comcast paid people to fill chairs at FCC townmeetings about Net Neutrality for example) so im not sure how to feel about it.

  15. 0
    jedidethfreak says:

    Be careful what you wish for, Zip.

    Do you think that if the FCC got control of the internet, THEY wouldn’t restrict what you have access to?  If you don’t, you’re an idiot.

    -no porn

    -no filesharing whatsoever

    -gaming internet would be restricted vehemently

    This is all from the top of my head, based on the agendas of the idiots in congress, as to the first things to go if/when the FCC can control the internet.

    You KILL Vampires. You don’t DATE them.

  16. 0
    ZippyDSMlee says:

    The FCC should be able to force ISPs to common carrier rules regardless of anything else.


     The FCC needs to have basic power of all forms of broadcast or should be done away with and a new board regulate communication basics.

    Until lobbying is a hanging offense I choose anarchy! CP/IP laws should not effect the daily life of common people!

  17. 0
    Austin_Lewis says:

    Actually, I was more wondering why it took five hours for this to go from the shoutbox to the page, especially as it seems like a pretty big deal.

  18. 0
    Thad says:

    I support net neutrality, but the FCC has repeatedly abused its regulatory power over the years.  The bad news about this decision is that it will embolden ISP’s to control users’ traffic; the good news is that it codifies restrictions on the FCC’s power to regulate the Internet.

    Ball’s in Congress’s court now.

  19. 0
    ZippyDSMlee says:

    The trouble is in most places comcast is the better choice…. you have about 4 or 6 companies that work national wide and off that 2 are in most aeras.

    Until lobbying is a hanging offense I choose anarchy! CP/IP laws should not effect the daily life of common people!

  20. 0
    hellfire7885 says:

    Well, thisi s a case where I WOULD tell customers to vote with their wallets and drops Comcast, however, in too many cases, and one case is too many here, they have no other choice. Telecoms pull the same shit insurance companies do, getting local monopolies.

  21. 0
    ZippyDSMlee says:

    So we are heading for the FCC or congress hving to make a new regulation rule set to handle ISPs?

    WHats the down side of the FCC using common carrier for ISPs? I mean sure the FCC is a bureaucratical nightmare but considering how bad the corporations can be are we not better off with one big evil than a half dozen smaller ones?


    Until lobbying is a hanging offense I choose anarchy! CP/IP laws should not effect the daily life of common people!

  22. 0
    Telecomguy says:

    Reports that this decision kills the FCC’s ability to regulate Internet Access services are overstated.  But the individual statements by the FCC Commissioners suggest that we are in for a highly charged battle over whether it is wise to regulate Internet access like we do telephone service.  See the Commissioner statements at the FCC’s home page (  For my thoughts on the decision, see my blog at


    Steve Augustino

  23. 0
    Neeneko says:

    Not just ‘free’, but by reducing the bottlenecks, one can get content to thier customers faster.  So yeah, there is a benifit to the consumer here too.  Moving content across bittorent can be a win-win.

  24. 0
    hcf says:

    I think your estimation of why torrents are used to distribute patches is flawed.  Let us correctly understand the reason why application developers/distributors make their programs avaialble via bittorrent:

    It is because it is free to them.

    In essence, they are "borrowing" their users upload capacity and repurposing it as download capacity supporting their commercial enterprise.

    Who should pay for the users’ upload capacities?  And what happens when DOCSIS 3.0 is well deployed and upload capacity is no longer technically restricted by available channel space (DOCSIS 3.0 makes upload rates near 100Mbps a possibility)?

    Right now we believe that the users pay for their upload capacity (so in essence you are paying your application developer less, but paying your ISP to defray network costs), but this is a white lie (not the least because your application probably cost you the same amount as it would have without the torrent).  It is true in the strictest sense that as users consume more upload bandwidth, it generates costs for their ISP which must be recouped by charging the users, but it is false to say that the behaviour of continuous upload use is a homogenous decision across all users – today we enjoy flat rates based upon download/upload pairings because user activity is generally homogenous, but should every user’s individual bill be raised to pay for a minority of users’ continuous upload behaviour?  Should billing change to reflect use?

    In summary, if you think that you want video games or other media to be distributed to you the end-user via bittorrent over a long term, then what you need to do is sit down and think carefully about what you want the business model to look like, and what the consequences will be if the business model continues to be incomplete (the ways in which the players will defend their businesses).

  25. 0
    foolkiller79 says:

    The power of the FCC is only granted to it by Congress.  It is there to suggest regulations to Congress and enforce them when Congres makes them law.  The FCC cannot create new rules on its own outside of the scope of this power, and according to the court the FCC failed to explain how this regulation would fall under the powers allotted to them. 

    The FCC must be limited in this way because they are a group of appointed, unelected officials that do not answer to anyone other than the President.  Were they to be allowed the power to create new rules without mandated responsibility from Congress then you would have unelected officials creating rules at a whim that have the backing of law, and only the president would be able to intervene.  It would remove all checks and balances. 

    Despite what anyone’s opinion of net neutrality or Comcast is, this ruling is just, as I understand the law.  This does not end the possibility of net neutrality or these regulations, it merely ends the FCC from trying to enact new regulations outside of their defined mandate. 

    What this does mean for things like net neutrality is that they will have to be made into law by Congress.  If both sides of this issue feel their opinion is legitimate then this is where they should want this to be done.  A Congressional bill will mean that net neutrality is open to a public debate.  Both sides of the issue will be heard by everyone.  I for one would be suspicious of any political group that wished it to be done in any other way.


    Of course, it could just mean that the FCC has a pretty crappy lawyer too. 

  26. 0
    Neeneko says:

    So the FCC does not have the authority to manage a scarce shared public medium, but they do have the authority to protect us from boobies?


    This.. this is the FCC we are talking about, right?  Not some other regulatory body?

  27. 0
    Neeneko says:

    The specific case was indeed about bittorrent since they had the additional sin of breaking network protocols via modifying people’s packets (as opposed to simply dropping or delaying them), so it made for a better test case.

    The shaping in general though was limits/caps on any high bandwidth traffic that originated from outside their network, with the bittorrent forging simply being how they implemented that one prong of a wider set of policies.

  28. 0
    Cerabret100 says:

    I don’t doubt it, but i’m basing solely on the article in which they state bitTorrent as the target. If an article stating they do it to more sites (which i don’t doubt, but i don’t have proof either), then i may be less receptive to them.

  29. 0
    Michael Chandra says:

    Unfortunately, I have run into games and programs that use bitTorrent to spread their patches. The reason they use torrents is because that makes it easier for you to get your hands on a game of entire gigs or a patch of hundreds of megs. Killing that would block people from playing these games, because they can’t get the install files.

    And hey, some music on iPods is prolly illegal, does that mean everyone who buys one oughta be treated as a criminal?

  30. 0
    Neeneko says:

    Keep in mind, bittorrent is what they trot out as their target, but the same policy also applied to things like Netflix’s streaming video service, which they tended to be quieter about. 


  31. 0
    Cerabret100 says:

    On one hand, i like net neutrility, it’s a good thing that a company’s whim can’t decide what i can and can’t view.

    On the other hand i distrust humanity enough in general that i’m willing to believe a majority of torrent users are users for illegal purposes and therefore don’t really mind a torrent program being taken out of action.

    Since i neither use bittorent, nor have any option other than comcast, i’m going to adopt a stance of neutrility myself until we see where this is  gonna go in the future.

  32. 0
    CMiner says:

    I’m on the fence about this. 

    On one hand I don’t want the government to have control over internet providers.

    On the other hand, I don’t want internet providers to be able to have complete control over (and more importantly, be able to manipulate) what their users see.

    Also, the way in which Comcast was interfering with Bit Torrent is more the issue to me than simply the fact that they were throttling a few users that were eating up the available bandwidth.

    Comcast was actually impersonating the computer that a bittorrent user was connected to, and sending fake packets to the user to terminate the connection.

    That would be like if you were on your AT&T phone talking to a friend, and suddenly you heard on the line, in your friend’s voice, "Sorry, I’ve got to go." and then the line disconnects, because AT&T didn’t like how many minutes you were using.

    I need to find that article that went into the details of what Comcast was doing…


    Edit: Though I did find this: where Comcast says they will be targetting specific users, rather than targetting filesharing protocols

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