The Alan Sondheim Mail Archive

April 8, 2010

---------- Forwarded message ----------
Date: Wed, 7 Apr 2010 23:30:08 -0400
From: moderator@PORTSIDE.ORG
Subject: US Court Rules AGAINST FCC On Net Neutrality

US Court Rules AGAINST FCC On Net Neutrality
In Big Win For Comcast
Huffington Post
April 6, 2010

WASHINGTON - A federal court threw the future of
Internet regulations into doubt Tuesday with a far-
reaching decision that went against the Federal
Communications Commission and could even hamper the
government's plans to expand broadband access in the
United States.

The U.S. Court of Appeals for the District of Columbia
ruled that the FCC lacks authority to require broadband
providers to give equal treatment to all Internet
traffic flowing over their networks. That was a big
victory for Comcast Corp., the nation's largest cable
company, which had challenged the FCC's authority to
impose such "network neutrality" obligations on
broadband providers.

Supporters of network neutrality, including the FCC
chairman, have argued that the policy is necessary to
prevent broadband providers from favoring or
discriminating against certain Web sites and online
services, such as Internet phone programs or software
that runs in a Web browser. Advocates contend there is
precedent: Nondiscrimination rules have traditionally
applied to so-called "common carrier" networks that
serve the public, from roads and highways to electrical
grids and telephone lines.

But broadband providers such as Comcast, AT&T Inc. and
Verizon Communications Inc. argue that after spending
billions of dollars on their networks, they should be
able to sell premium services and manage their systems
to prevent certain applications from hogging capacity.

Tuesday's unanimous ruling by the three-judge panel was
a setback for the FCC because it questioned the agency's
authority to regulate broadband. That could cause
problems beyond the FCC's effort to adopt official net
neutrality regulations. It also has serious implications
for the ambitious national broadband-expansion plan
released by the FCC last month. The FCC needs the
authority to regulate broadband so that it can push
ahead with some of the plan's key recommendations. Among
other things, the FCC proposes to expand broadband by
tapping the federal fund that subsidizes telephone
service in poor and rural communities.

In a statement, the FCC said it remains "firmly
committed to promoting an open Internet and to policies
that will bring the enormous benefits of broadband to
all Americans" and "will rest these policies ... on a
solid legal foundation."

Comcast welcomed the decision, saying "our primary goal
was always to clear our name and reputation."

The case centers on Comcast's actions in 2007 when it
interfered with an online file-sharing service called
BitTorrent, which lets people swap movies and other big
files over the Internet. The next year the FCC banned
Comcast from blocking subscribers from using BitTorrent.
The commission, at the time headed by Republican Kevin
Martin, based its order on a set of net neutrality
principles it had adopted in 2005.

But Comcast argued that the FCC order was illegal
because the agency was seeking to enforce mere policy
principles, which don't have the force of regulations or
law. That's one reason that Martin's successor,
Democratic FCC Chairman Julius Genachowski, is trying to
formalize those rules. Story continues below

The cable company had also argued the FCC lacks
authority to mandate net neutrality because it had
deregulated broadband under the Bush administration, a
decision upheld by the Supreme Court in 2005.

The FCC now defines broadband as a lightly regulated
information service. That means it is not subject to the
"common carrier" obligations that make traditional
telecommunications services share their networks with
competitors and treat all traffic equally. But the FCC
maintains that existing law gives it authority to set
rules for information services.

Tuesday's court decision rejected that reasoning,
concluding that Congress has not given the FCC
"untrammeled freedom" to regulate without explicit legal

With so much at stake, the FCC now has several options.
It could ask Congress to give it explicit authority to
regulate broadband. Or it could appeal Tuesday's

But both of those steps could take too long because the
agency "has too many important things they have to do
right away," said Ben Scott, policy director for the
public interest group Free Press. Free Press was among
the groups that alerted the FCC after The Associated
Press ran tests and reported that Comcast was
interfering with attempts by some subscribers to share
files online.

Scott believes that the likeliest step by the FCC is
that it will simply reclassify broadband as a more
heavily regulated telecommunications service. That,
ironically, could be the worst-case outcome from the
perspective of the phone and cable companies.

"Comcast swung an ax at the FCC to protest the
BitTorrent order," Scott said. "And they sliced right
through the FCC's arm and plunged the ax into their own

The battle over the FCC's legal jurisdiction comes amid
a larger policy dispute over the merits of net
neutrality. Backed by Internet companies such as Google
Inc. and the online calling service Skype, the FCC says
rules are needed to prevent phone and cable companies
from prioritizing some traffic or degrading or services
that compete with their core businesses. Indeed,
BitTorrent can be used to transfer large files such as
online video, which could threaten Comcast's cable TV

But broadband providers point to the fact that
applications such as BitTorrent use an outsized amount
of network capacity.

For its part, the FCC offered no details on its next
step, but stressed that it remains committed to the
principle of net neutrality.

"Today's court decision invalidated the prior
commission's approach to preserving an open Internet,"
the agency's statement said. "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."


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