April 15, 2010, 11:27 AM — Government regulators do not have the power to make up their responsibilities. Regulators get their authority and scope from laws passed by state or federal legislatures. In the case of the FCC the law is the Communications Act of 1934 as amended over the years.
It was no surprise to me that the U.S. Court of Appeals in Washington, D.C., ruled earlier this month that the FCC had exceeded the authority and scope given to it by the Communications Act when the commission ordered Comcast to stop violating the FCC's Internet principles.
The appeals court was quite direct in its conclusion, ruling against the FCC "because the Commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any statutorily mandated responsibility" (i.e., the FCC had not been able to show that any part of the law gave it authority to do what it had done). The court pointed out that if it had accepted the FCC's arguments, "it would virtually free the Commission from its congressional tether."
When I wrote about the likelihood that the decision would be overturned I got soundly admonished by some Washington insiders who had advised the FCC to take the path that it took. I was not seen as being true to the cause. Sorry, while I think the cause is important, I cannot ignore the law.
In many ways the original Comcast case was about as perfect an example of why the cause is important to all Internet users as one could have concocted. The particular approach Comcast took to a problem of its local networks getting congested was unfair, done in secret and denied when caught. Since being outed, Comcast has revised its approach to one that is quite fair and Comcast has been open about what it is doing.
Since the Appeals Court decision, all of the major players in the Internet service business have gone out of their way to say that they supported the FCC's Internet fairness principles. If we could trust that all ISPs would always follow these principles there would be no need to worry.
But, in the few days since the decision there has already been a case where an ISP has been accused of secretly redirecting people who wanted to perform Google searches to the ISP's own search engine -- the exact sort of thing that net neutrality proponents are worried about.