A good explainer here:
http://volokh.com/2010/04/07/the-fcc-and-the-internet/ There are two possible sources of express statutory authority in the 1934 Communications Act: Title II (which gives the FCC authority to regulate “telecommunications services”) and Title VI (authority over “cable services”). The FCC, however, relied on neither of those to support its actions here — in (large) part probably because it had earlier taken the position that cable Internet services are neither “telecommunications services” OR “cable services,” but rather “information services” subject to much less stringent regulatory review. [The FCC’s earlier decision was upheld by the Supreme Court in the 2005 Brand X decision]. Instead, the agency relied on its “ancilllary jurisdiction,” set forth in sec. 4(i) of the Communications Act: “The Commission may perform any and all acts, . . . and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.” The bottom line in the court’s decision is that this “ancillary jurisdiction” has to be truly “ancillary” to be lawful — that is, that the agency has to point to some express authority in the statute to which its actions are indeed “ancillary” in order to have jurisdiction to proceed, and that it was unable to do so here (in light of its earlier and still-binding decision to cast Internet service as niether a “telecommunications” nor a “cable” service). cjf Christopher J. Feola President, nextPression Follow me on Twitter: <http://twitter.com/cjfeola> http://twitter.com/cjfeola From: [email protected] [mailto:[email protected]] On Behalf Of ERIC P. CHARLES Sent: Thursday, April 08, 2010 1:13 PM To: Owen Densmore Cc: The Friday Morning Applied Complexity Coffee Group Subject: Re: [FRIAM] Net Neutrality Ruling Owen, As I understand the ruling, the court decided that the FCC had screwed up by making their own rules limiting their purview over broadband. Thus it was internally inconsistent for the FCC to declare broadband a 'lightly regulated' medium, and then try to regulate it in a heavy-handed way. Likely, the FCC will fix the problem simply by declaring broadband to be a 'heavily regulated' medium, or otherwise fixing their internal rules to give them more explicit power in these sorts of matters. I'm not sure that Comcast's rules made any sense to begin with. Why target Bit-torrent? Probably just in part to control bandwidth, but mostly to be able to say "I tried" if anyone ever tries to sue them as accessories to digital theft. I'd appreciate knowing if anyone else had a different read on what happened, Eric On Thu, Apr 8, 2010 01:30 PM, Owen Densmore <[email protected]> wrote: Has anyone made sense of the ruling in Comcast's favor? As I understand, they cut down bit-torrent due to bandwidth usage. But that makes no sense, it is not a real-time protocol. If they wanted to manage bandwidth, they would presumably go after Hulu, Amazon, Netflix etc. I'm not even sure how successful a bit-torrent block would be -- each person chooses their own port address. There is a default port but all are warned to change it for security reasons. And there are no bit-torrent servers, but lots of peers sharing. Any file you download are fragments from several peers. -- Owen ============================================================ FRIAM Applied Complexity Group listserv Meets Fridays 9a-11:30 at cafe at St. John's College lectures, archives, unsubscribe, maps at http://www.friam.org Eric Charles Professional Student and Assistant Professor of Psychology Penn State University Altoona, PA 16601
============================================================ FRIAM Applied Complexity Group listserv Meets Fridays 9a-11:30 at cafe at St. John's College lectures, archives, unsubscribe, maps at http://www.friam.org
