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FCC Loses on Appeal in Comcast Case

By : Chris Tribbey | Posted: 06 Apr 2010

In a ruling that analysts say will have far-reaching implications for American Internet regulation and the expansion of broadband nationwide, an appeals court April 6 said that the Federal Communications Commission doesn’t have the authority to keep Internet service providers (ISPs) from blocking some Web traffic.

The unanimous ruling by the U.S. District Court of Appeals for the District of Columbia found that the FCC had overstepped its authority in 2008 when it told Comcast Corp. it could not prevent its broadband subscribers from using the file-sharing service BitTorrent. Comcast subscribers complained about the blocking of access to peer-to-peer services in 2007.

“The Commission may exercise this ‘ancillary’ authority only if it demonstrates that its action — here barring Comcast from interfering with customers’ use of peer-to-peer networking applications — is ‘reasonably ancillary to the … effective performance of its statutorily mandated responsibilities,’” the court wrote in its opinion.

“The Commission has failed to make that showing.”

The opinion voids a 2008 order against Comcast by the FCC.

Comcast said it was “gratified” by the ruling, and “remains committed to the FCC’s existing open Internet principles.”

“Our primary goal was always to clear our name and reputation,” said Sena Fitzmaurice, VP of government communications for Comcast. “We have always been focused on serving our customers and delivering the quality open-Internet experience consumers want.”

Time Warner Cable issued a statement saying the decision wouldn’t prevent it from offering an “open Internet experience” to its customers.

“We believe that the evolution of broadband has been enormously successful and popular with the public,” the company said. “We look forward to continuing to work with the FCC and other regulators to continue to build on this success, and today’s decision does not affect that commitment.”

Analysts, however, said the ruling allows ISPs to control Internet access, potentially favoring some sites and services over others.

“Today’s Appeals Court decision means there are no protections in the law for consumers’ broadband services,” said Gigi B. Sohn, president and co-founder of Public Knowledge, an advocacy organization dedicated to promoting public interest in access to information. “Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others.”

Fred von Lohmann with the Electronic Frontier Foundation pointed out that Congress has never given the FCC the authority “to regulate the Internet for the purpose of ensuring net neutrality.”

“The court's ruling is important because it represents a blow to FCC Chairman [Julius] Genachowski's proposed net neutrality regulations, which are premised on the same theory of ‘ancillary jurisdiction’ that the FCC used against Comcast and that the court rejected today,” he said. Von Lohmann added that the FCC may try to reclassify Internet access services under the Communications Act, to bring ISPs under its authority.

Colin Dixon, senior partner for The Diffusion Group, believes the decision does open the way for ISPs to give broadband preference to their own services, potentially impeding consumers’ access to other services.

“As operators begin to deliver video services, such as Comcast’s Fancast Xfinity, on their broadband networks, Internet-service providers need to know that the broadband playing field will remain even,” he said. “Can they really trust Internet-service providers to not prefer their own broadband services when exercising ‘network management’ to relieve congestion?”

The FCC said the fight isn’t over.

“Today’s court decision invalidated the prior Commission’s approach to preserving an open Internet,” said FCC spokeswoman Jen Howard, “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.”

The ruling may also have a negative affect on the FCC’s National Broadband Plan, unveiled in March. The plan calls for 100 million American households to be connected to 100MB-per-second Internet by 2020.

“The ability of the FCC to support broadband through universal service is in jeopardy, as is the agency’s ability to protect consumer privacy, ensure access to broadband-based emergency communications or promote access for the disabled,” Sohn said.

The ruling may prevent the FCC from overseeing broadband expansion into more rural areas.


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