In a unanimous 3-0 Decision last Tuesday April 6 the United States Court of Appeals for the District of Columbia Circuit ruled that the Federal Communication Commission did not have the authority to order Comcast in 2008 to cease and desist interfering with the traffic of Bit Torrent a P2P file sharing service. At the time Comcast ostensibly accepted the order, but ended up appealing the ruling in the courts. The April 6 opinion is the result of that appeal.
As can be expected, reactions have been quick in coming and are quite varied, depending on the perspective and interests of those responding. Some have emphasized the supposedly narrow scope of the ruling attempting to play down its overall importance. Others see it has quite significant, even ground breaking in its scope. For example, will the ruling set a prescedent that allows internet providers to control broadband service as they see fit since it clearly undercuts the FCC’s claim to authority to regulate the internet? What about the FCC’s recently released National Broadband Plan supported by the Obama administration? Many of my fellow libraraians have been looking forward to both participating in and benefiting from this program which contains some provisions related to libraries.? And what about the overarching issues relating to equal treatment for all who use the internet? That not only refers to the “information poor” who often have difficulty getting access under the best of conditions; is could also impact those at the opposite end of this spectrum, eg. Google’s You Tube and Microsoft’s MSN.com?
So many questions, which indicates that this decision really is important with far reaching consequences. Some think this ruling will be appealed to the U.S. Supreme Court but we will need to wait and see. Meanwhile, the FCC has been handed some significant regulatory issues it will need to try to work around. Can they do it. It appears from a statement issued after the ruling that they are prepared to try.
Some believe the FCC might consider move to reclassify internet services as Title II common carrier services which transport people and goods under regulatory supervision. That might help the FCC move toward the broadband stimulus bill which relies on the FCC to regulate internet access. But that could ignite a firestorm among the carriers and there may be a question as to whether the FCC really wants to take that on.
The ruling does appear to free the big cable companies such as Comcast from the threat of net neutrality rules which they say would interfere significantly with their ability to manage traffic on their own networks and prioritize certain applications such as those used to block spam.. Others are concerned that the ruling will hinder the Obama administrations push for more net neutrality on the web. And what about the common ordinary citizen who is in desperate need for web access? Right now the outlook appears highly uncertain. It is worth noting the remark of Ben Scott, policy director for the Free Press, a not-for-profit organization that supported the F.C.C in the Comcast case: “Internet users now have no cop on the beat.”
Reactions keep coming. Here is an excerpt from the April 12, 2010 National Law Journal as reported on LAW.COM:
“Comcast’s courthouse victory over the Federal Communications Commission last week might not turn out to be a win for the company after all if it speeds the path for wider regulation of broadband services. The unanimous ruling was a short-term affirmation for those who want to rein in the FCC’s ability to impose ‘net neutrality’ rules, but major battles loom in at least two venues: the commission and Congress. A loss in either place would mean a lot more uncertainty for companies like Comcast.”
Below are two documents related to the Comcast decision. The first link is to the FCC Statement issued after the decion’ the second link is to the decision itself.
FCC Statement on Comcast v. FCC Decision
Decision: Comcast Corporation v. Federal Communications Commission No. 08-1291