As the FCC faced an avalanche of comments in its open Internet proceeding (see “Commission Starts Promised Net Neutrality Proceeding” in October 2009 edition of the CLB), on January 8 the D.C. Circuit heard oral arguments in Comcast’s appeal of the FCC’s 2008 finding that Comcast had violated the FCC’s Internet Policy Statement when it blocked certain peer-to-peer file transfers. In the Comcast case, the FCC had relied primarily upon its ancillary jurisdiction under Title I of the Communications Act, and the judges seemed skeptical of the FCC’s actions and legal authority at the oral argument.

Since the 2008 Comcast decision, the FCC has proposed that the Internet Policy Statement be codified and expanded to apply nondiscrimination and transparency requirements. Comments on this pending rulemaking proceeding were due January 14, and replies are due March 5.

Following the Comcast oral argument, the FCC reportedly is weighing options to clarify its authority over Internet service providers. Without well-defined authority, any open Internet rules adopted in the pending rulemaking would be subject to renewed challenge in the courts.