John Armor

The internet is safe for the moment from the clutches of federal regulators thanks to a court decision that may be a harbinger for legal challenges to ObamaCare.

The United States Court of Appeals for the D.C. Circuit struck down on April 6 an effort by the FCC to regulate internet policies of a private company. The basis of this unanimous decision in Comcast v. Federal Communications Commission may bode well for the multiple cases pending that claim that the just-passed Health Care Act is unconstitutional.

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The FCC had adopted a ruling which required Comcast to drop a restraint it had placed on use of its services by one of its broadband customers. The FCC acknowledged that it did not have direct, statutory authority to regulate activities on the internet. It argued that the following clause did justify its actions:

"Section 4(i) of the Communications Act of 1934 says that the FCC is entitled '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 exercise of its functions.'"

Various "public interest" lawyers had filed an FCC complaint against Comcast, arguing that its restriction of certain broadband users violated an Internet Policy Statement of the FCC that says "customers are entitled to access...the Internet content of their choice." The court recognized that this was a bootstrap argument, because a policy statement of the FCC cannot be binding without statutory authority from Congress.

In 2008, the FCC issued the sanction against Comcast for violating the agency's "net neutrality" guidelines by slowing traffic to the BitTorrent file-sharing site, which Comcast argued was generating "excessive" traffic. Comcast appealed the sanction, saying that the agency had exceeded its authority.

The Commission defended its actions based on certain Supreme Court cases. As the D.C. Circuit noted, however, the latest Supreme Court decision on point did not justify the current reach of the FCC: Unless the FCC action was directly connected to broadcasting in some way, "the Commission's ancillary jurisdiction would be unbounded."


John Armor

John Armor practiced First Amendment law in the US Supreme Court for 33 years and wrote this article at the behest of the American Civil Rights Union.