The Knight Commission on the Information Needs of Communities in a Democracy has called for policymakers to “maintain the national commitment to open networks as a core objective of Internet policy” (recommendation 9). Finding a way to honor this commitment is one challenge facing the Federal Communications Commission and other policymakers as they chart a course for implementing the National Broadband Plan released last month.
The U.S. Court of Appeals for the D.C. Circuit today handed down a decision that sets limits on what routes are legally permissible for the FCC to travel to ensure open access to network resources. In today’s ruling, the three judge panel overturned the FCC’s decision to sanction Comcast for blocking P2P network access. In its decision, the Court said that the FCC lacked legal authority to impose sanctions for what the Court found to be ”reasonable network management.”
Arguments in favor of the FCC’s sanctions of Comcast cited the FCC’s Internet Policy Statement adopted in 2005, which includes four Internet freedoms, originally identified by former FCC Chairman and Knight Commission member Michael Powell, that embrace open network principles.
As summarized by the Court, the Policy Statement “adopt[ed] the . . . principles” that “consumers are entitled to access the lawful Internet content of their choice . . . [and] to run applications and use services of their choice.”
But the Court rejected the argument that the Policy Statement alone could authorize the FCC to impose sanctions for Comcast’s blocking activities, stating: “Policy statements are just that–statements of policy. They are not delegations of regulatory authority.”
The Knight Commission regards the openness of networks as essential to meeting community information needs. Open access is an important corollary to setting ambitious standards for nationwide broadband availability. This is why the Commission has called on legislators and other policy makers to remain vigilant and committed to maintaining openness.