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FEATURE
Court decision leaves Net Neutrality future uncertain
By Jon Gingerich
Afederal appeals court in April ruled
that the FCC does not have the
authority to penalize telecom companies
that block or limit information on
their networks.
The decision is a deathblow to a series of
years-long attempts by the commission,
Internet content providers and consumer
rights groups who have fought to instill a
legal precedent that recognizes all data on
the Internet as equal, a notion that has
bloomed into the cause célèbre known as
Net Neutrality.
The case stems from a series of 2007
incidents involving telecom giant Comcast,
which was accused of “packet-forging,” or
using data encryption to prevent customers
from accessing file-sharing application
BitTorrent. Former FCC Chairman Kevin
Martin said the company “actively interferes
with Internet traffic as its subscribers
try to share files online.”
After a lengthy investigation, the FCC in
2008 sanctioned the telecom company.
Comcast challenged the decision, stating
their actions were necessary, as sites like
BitTorrent take up abnormally large
amounts of bandwidth and thus pose a burden
on their network. The Philadelphiabased
company is the largest ISP in the U.S.
A unanimous decision in the D.C. Circuit
ruled that the FCC’s reprimand of Comcast
exceeded its authority. The reason: a 2002
restructuring within the commission reclassified
Internet services as different than
telephone. As such, the FCC currently does
not have the power to regulate these devices
to the same degree, and any regulatory
actions not coupled to “old” telecommunications
devices fall outside its jurisdiction.
Experts close to the ruling say the only
way the FCC may be able to regulate
Internet service issues in the future is if it
restructures internal policies and reclassifies
telecommunications services to fit their
purview.
“I think the instant reaction is that it’s a
setback,” said Chris Riley, Policy Manager
for the Free Press. “Congress previously
gave the FCC a discretion they no longer
have. This has definitely raised alarm levels
for supporters of the public interest.”
A step back for Net Neutrality
With no laws currently in place to prohibit
telecom companies from blocking or
limiting users’ access to information, critics
have said the 2007 Comcast incident
highlights a need for lawmakers to implement
legislation that keeps service
providers from blocking online content.
This is the notion known as Net Neutrality,
which in its broadest sense is the idea that
all content on the Internet should be available
for equal access.
Neutrality supporters, which include
consumer rights groups, content providers
and Internet companies such as Google,
Yahoo!, eBay and software giant
Microsoft, have asked for new federal regulations
that would keep telecom companies
from becoming Internet “gatekeepers.”
These groups have expressed broadband
providers could hypothetically slow down
or even deny access to websites in favor of
sites with whom they have financial or
political affiliation.
Riley posited that Comcast’s proposed
merger with NBC Universal could brew
one such perfect storm.
“Not only does the Comcast example
show they have the tools to block and control
content, but we’ve also seen their
incentives to do it as well,” he said. “If this
merger is successful, it’s really easy to envision
a scenario in which a network gives
preference to what information is shown.
This could effectively turn the Internet into
a glorified version of cable television.”
Opponents of neutrality regulation legislation
typically include the national cable
and telephone providers. AT&T, Verizon,
Bell South, Cingular and AOL have each
voiced their opposition to the neutrality
amendment and have lobbied to kill bills
that contain Neutrality legislation. They’ve
since found support from organizations like
as the U.S. Chamber of Commerce and the
American Conservative Union.
In a statement regarding the court decision,
Comcast insisted it “remains committed
to the FCC’s existing open Internet principles,
and we will continue to work constructively
with this FCC as it determines
how best to increase broadband adoption
and preserve an open and vibrant Internet.”
Some have speculated the ruling could
also pose a threat to the FCC’s ambitious
plans to increase broadband service in rural
U.S. areas. The plan, which would be funded
by the recent sale of spectrum auctions,
would give federal subsidy money to telecom
companies that agree to wire rural
areas currently sparse on broadband
access. Many now posit the court’s decision
reaffirms the idea that the FCC can’t
implement federal broadband policy, and
the commission may have to tweak their
envisioned plan of a wired nation.
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