Yesterday, as you are probably aware, the DC Circuit, in a unanimous opinion, held that the FCC’s action in 2008 — ordering an Internet Service Provider (Comcast) to stop interfering with its customers’ use of peer-to-peer networking applications — was ultra vires and unsupported by any statutory grant of authority to the agency. The decision has been greeted with a veritable explosion of commentary — in the NY Times, the Washington Post, and all over the blogosphere — e.g., here, here, and here — mostly in connection with questions about the implications of the decision for the FCC’s overall regulation of Internet services and, more specifically, for it’s announced intention to formulate “net neutrality” (or “open Internet”) rules.
Now, telecommunications law is, generally speaking, not for the faint of heart. The Communications Act, and its 1996 successor the Telecomm Reform Act of 1996, set forth as complicated a statutory regime as can be imagined — added on to which are the numerous FCC interpretive actions (sometimes contradictory of one another), court interpretations of agency interpretations, and on and on. I’m no specialist in the area, but I know enough about it to know what I know and what I don’t know, and I have enough friends who are specialists to understand the broad outlines, in most cases, of what people are fighting about.
Fortunately, the opinion in this case — authored by Judge David Tatel — is a particular terrific example of judicial exposition. It’s not an easy read, to be sure, but that’s because it’s complicated stuff; but Judge Tatel does a wonderful job of making the complicated as simple as possible (heeding Einstein’s famous admonition — make things as simple as possible, but no simpler). My guess is that anyone with an interest (but [...]