By Tony Romm - 04/07/10 09:26 PM EDT
The FCC on Wednesday admitted a recent court decision that curtails its Internet regulatory powers "may affect a significant number" of the agency's broadband expansion proposals.
According to the commission, which detailed its concerns in a recent blog post, the FCC is currently without a "sound legal basis" to implement recommendations included as part of its National Broadband Plan, designed in part to expand broadband to 90 percent of U.S. households by 2020.
"We are assessing the implications of yesterday’s decision for each [recommendation], to ensure that the Commission has adequate authority to execute the mission laid out in the Plan," wrote Austin Schlick, general counsel for the FCC.
Chiefly threatening the agency's ability to carry out many of its more robust recommendations in the National Broadband Plan is Tuesday's federal court ruling, which found the FCC has no 'ancillary' authority to regulate Web providers.
The decision stems from a 2007 dispute between Comcast and the FCC over the ISP's move to block some users' access to illegal file-sharing sites, in part to ensure the speed of its own network. After the FCC ordered Comcast in 2008 to cease that practice, Comcast took the FCC to court, questioning its authority.
Ultimately, the D.C. appeals court this week sided with Comcast, noting the FCC did not have the power to regulate broadband because it is a "Title II" information service. Current law only permits the FCC to oversee "Title I" telecommunication services, all three court judges noted, though they did not explicitly condemn the FCC's pursuit of open Internet rules.
Still, the decision amounts to a major loss for the FCC, the Obama administration and the many other companies and interest groups that have long hoped the commission could more forcefully regulate the Web and institute net neutrality reforms. Moreover, it calls into question the agency's ability to implement its own broadband plan, which it drafted under the assumption that it possessed key powers to regulate broadband expansion.
The agency could overcome many of those impasses and liberate its plan from legal limbo by re-classifying broadband as a Title I service. However, while the agency has signaled it could pursue that route, such a move would nonetheless infuriate telecommunications companies like Comcast, Verizon and AT&T, which have vowed to fight re-classification aggressively.
Barring that, the agency did note that other parts of the plan would remain intact, including its proposals to auction broadband spectrum, introduce broadband into schools and establish an interoperable public safety communications network.