The U.S. Court of Appeals for the District of Columbia has ruled in Comcast v. FCC that the Federal Communications Commission lacks the authority to require Comcast to stop throttling BitTorrent traffic.
Here's an excerpt:
Although the Commission once enjoyed broader authority over cable rates, see id. § 543(c)(4), its current authority is limited to setting standards for and overseeing local regulation of rates for "basic tier" service on certain cable systems. See id. § 543(b). In the Order, the Commission does not assert ancillary authority based on this narrow grant of regulatory power. Instead, the Order rests on the premise that section 1 gives the Commission ancillary authority to ensure reasonable rates for all communication services, including those, like video-ondemand, over which it has no express regulatory authority. . . .
It is true that "Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies." Resp't's Br. 19. It is also true that "[t]he Internet is such a technology," id., indeed, "arguably the most important innovation in communications in a generation," id. at 30. Yet notwithstanding the "difficult regulatory problem of rapid technological change" posed by the communications industry, "the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority." NARUC II, 533 F.2d at 618 (internal quotation marks and footnote omitted). Because the Commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any "statutorily mandated responsibility," Am. Library, 406 F.3d at 692, we grant the petition for review and vacate the Order.
The FCC issued the following statement about the ruling:
The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies—all of which will be designed to foster innovation and investment while protecting and empowering consumers—on a solid legal foundation.
Today's court decision invalidated the prior Commission’s approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.
Read more about it at "Comcast 1, FCC 0: What to Look For in the Inevitable Rematch"; "Court Rejects FCC Authority Over the Internet"; "Is Net Neutrality Dead? (FAQ)"; and "Public Knowledge Explains: The Comcast-BitTorrent Decision."