Article Title

Derailed by the D.C. Circuit: Getting Network Management Regulation Back on Track

Authors

Edward B. Mulligan V, Indiana University Maurer School of Law

Document Type

Note

Publication Date

6-2010

Publication Citation

62 Federal Communications Law Journal 633 (2010)

Abstract

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation's network management practices as "discriminatory and arbitrary." In that Order, the FCC required that Comcast (1) adopt new practices that complied with federal Internet policy and (2) disclose the specifics to its customers and the FCC. Comcast responded by adopting a new practice and, in the alternative, filing an appeal with the United States Court of Appeals for the D.C. Circuit challenging the FCC's authority to regulate network management practices.

On April 6, 2010, the D.C. Circuit issued its much-anticipated decision. In a narrow opinion, it vacated the Order, holding that the FCC had neither express nor "ancillary" authority to regulate network management practices. In the wake of the D.C. Circuit's decision is uncertainty about the path forward. The FCC has, however, reaffirmed its commitment to promote federal Internet policy. The first step to getting Internet regulation back on track is to "reestablish" jurisdiction. As this Note discusses, there are a number of ways in which the FCC can accomplish this. However, jurisdiction is merely the first step. After taking a closer look at whether Comcast's post-2008 Order network management practices actually complied with the FCC's Order, this Note recommends that the next step is to adopt clear rules for network management, backed by monitoring procedures and real consequences designed to ensure long-term compliance.

Recommended Citation

Mulligan, Edward B. V (2010) "Derailed by the D.C. Circuit: Getting Network Management Regulation Back on Track," Federal Communications Law Journal: Vol. 62: Iss. 3, Article 5.
Available at: https://www.repository.law.indiana.edu/fclj/vol62/iss3/5