Congress created the Federal Communications Commission (FCC) in 1934 to regulate the use of radio and interstate communications such as radio. Since then, telecommunications has obviously changed a great deal, leaving courts with the task of determining the proper reach of the FCC’s powers. In a recent turf battle with telecom giant Comcast over Internet regulation, the FCC suffered a noteworthy defeat which may change the Internet permanently.
The case emerged from a 2007 incident in which Comcast downgraded the Internet service that it provided to a group of users using BitTorrent, a peer-to-peer file sharing protocol that uses a large amount of bandwidth. A coalition of public interest groups, law professors, and non-profits filed a complaint against Comcast with the FCC, asking the Commission to issue a declaratory ruling prohibiting Comcast from such activity. Essentially, the petitioners argued that a privately run business should not have the power to choose what content should and should not be permitted on the Internet. In this view, the FCC should have the power to regulate the Internet as it does telephone networks – as services of “common carriage” for the public to use with little restriction.
Comcast challenged the petition, and the case eventually found its way to the D.C. Federal Court of Appeals. In April of 2010, the Court held that neither the 1934 Communications Act nor subsequent case law give the FCC authority to regulate the Internet. Accordingly, the Commission overstepped its authority in its action against Comcast.
The Court’s decision has been hugely controversial, with some commentators claiming that the government has effectively handed regulation of the Internet over to telecom companies. Some supporters of the concept of network neutrality worry that in the absence of the FCC’s oversight, Internet service providers will begin to engage in censorship or unfair business practices.
In the bigger picture, however, the issue is far from settled. While the decision does roll back many of the FCC’s powers, there are numerous legal processes that might still lessen its impact. An act of Congress could alter the FCC’s jurisdiction or reclassify Internet services so as to bring them under the FCC’s current jurisdiction. A higher court might overturn Comcast v. FCC, or the related cases on which it relies. In any case, the average Internet user is not likely to see any noticeable changes as a result of this decision. Even Comcast, as a result of increased public scrutiny, has changed the policies that initially gave rise to the case. Nevertheless, Comcast v. FCC demonstrates on a huge scale the ongoing tug-of-war between business, government, and the public over the regulation of information technology.