They also insist they need flexibility to manage their systems so high-bandwidth applications such as BitTorrent don’t hog too much capacity and slow the network for everyone else.
Many education-technology advocates say that without net-neutrality rules, the price of online learning soon could prove untenable for students. If broadband providers are left unchallenged, they say, the price of web access could skyrocket in coming years, discouraging students from pursuing web-based college courses.
While these issues are being hashed out in the net-neutrality proceeding at the FCC, the current court case is focused on legal questions.
For its part, Comcast argues that the FCC order is illegal because the agency was seeking to enforce mere policy principles, which don’t have the force of regulations or law. As a result, the Philadelphia-based cable company says, it never had clear rules to follow and was never given fair notice of what conduct was prohibited. In fact, Comcast insists, the FCC’s current proceeding to adopt the 2005 principles as formal regulations underscores its point.
Comcast also maintains that because that proceeding is still in the early stages, it remains unclear whether the agency even has legal authority to mandate net-neutrality obligations.
But the commission argues that a 2005 Supreme Court ruling upholding its move to deregulate internet service gives it the jurisdiction it needs. The high court upheld the FCC’s decision to define broadband as a lightly regulated information service, which is not subject to the obligations that traditional telecommunications services have to share their networks with competitors and treat all traffic equally. A 1996 federal telecommunications law, however, gives the agency the authority to set rules for information services—including, the FCC argues, net-neutrality rules.
An appeals court ruling that rejects this argument could draw Congress into the matter to give the FCC the power to regulate broadband as an information service. Several key lawmakers already have drafted legislation to mandate network neutrality, while others—including Republican Sen. John McCain of Arizona—have introduced legislation that would bar federal regulators from establishing net-neutrality rules. Lawmakers also could force the agency to consider reclassifying broadband as a more heavily regulated telecommunications service that would be subject to non-discrimination rules.
Either way, the case heard Jan. 8 could provide a road map. After all, even if the court issues a very narrow ruling—concluding only that the FCC’s policy principles were not binding—the agency’s upcoming net-neutrality regulations are likely to face a court challenge, too.
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