Net neutrality rules on shaky ground

LAS VEGAS -- Federal Communications Commission members today acknowledged a setback for net neutrality regulations, a day after a federal court questioned the agency's authority to police Internet traffic.

"It sounds like it did not go well at all for the FCC," said Republican Commissioner Robert McDowell on a panel I moderated here at the Consumer Electronics Show. McDowell voted against a 2008 decision to order Comcast to stop slowing traffic to file-sharing sites.

Comcast appealed that decision, saying the FCC's "open Internet" principles are not codified and therefore not enforcable. A U.S. Federal Appeals Court panel of judges yesterday focused its questioning of the FCC on its jurisdiction to enact any Internet regulations in the first place.

If the court rules that the FCC overstepped its bounds in the Comcast case, it could derail the Obama administration's cornerstone net neutrality agenda. In October, the FCC started the process of developing net neutrality regulations. The first round of comments are due Thursday.

The court may decide the FCC needs an explicit congressional mandate to carry out a net neutrality rulemaking. In that case, Congress would have to authorize the FCC to do so, or Congress could pass its own net neutrality legislation.

Democratic Commissioner Mignon Clyburn said, "I believe the Commission was on solid ground" with the Comcast order. "In order for this (Internet) universe to continue to thrive, there needs to be a level of comfort...and rules of the road."

Even though he disagrees that regulations are needed, McDowell said the agency "should plow ahead with the proceeding" and wait for the court's formal opinion.