WASHINGTON — A federal court threw the future of Internet regulations and U.S. broadband expansion plans into doubt Tuesday with a far-reaching decision that went against the Federal Communications Commission.
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.
For the average Internet user, the latest salvo in the long-running “network neutrality” battle may not mean much initially. But consumer advocates fear that granting broadband providers the power to block access to certain Internet sites and content may ultimately lead to sweetheart deals between network operators and online companies. Subscribers could be forced to use one site over another, such as Yahoo over Google, for example.
In 2007, Comcast prevented some broadband customers from accessing a file-sharing site called BitTorrent, which allows users to swap big files such as movies over the Internet. The FCC later ordered the cable giant to stop. Comcast challenged the mandate, leading to Tuesday’s ruling.
The “appeals court decision means there are no protections in the law for consumers’ broadband services,” said Gigi Sohn, co-founder of Public Knowledge, a digital rights public interest group. “Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others.”
The unanimous ruling by the three-judge panel marks a serious setback for the FCC, which is trying to adopt official net neutrality regulations.
FCC Chairman Julius Genachowski, a Democrat, argues such rules are needed to prevent phone and cable companies from using their control over Internet access to favor some kinds of online content and services over others.
Public interest groups stressed that the ramifications of Tuesday’s ruling are much broader. That’s because it undercuts the FCC’s ability to prevent broadband providers from becoming gatekeepers for many kinds of online services, potentially including Internet phone programs and software that runs in a Web browser.
Comcast welcomed the ruling. “Our primary goal was always to clear our name and reputation,” the company said in a statement.
Expansion plans at risk
The decision also has serious implications for the massive national broadband plan released by the FCC last month. The FCC needs clear authority to regulate broadband in order to push ahead with some of its key recommendations, including a proposal 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.”
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 ruling.
An open and robust Internet is vital to the economy, said Steve Davis, senior vice president of public policy and government relations for Denver-based Qwest.
Tuesday’s “decision reinforces the need for Congress to define an appropriate role for the FCC on this critical component of our national economy,” Davis said.
AT&T said existing rules governing Internet usage work. “No serious voice has suggested that any abuses are occurring today,” the company said.
Order came in 2008
At the heart of the court case is Comcast’s challenge of a 2008 FCC order banning it 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 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 Genachowski is now trying to formalize those rules.
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 obligations traditional telecommunications services have to share their networks with competitors and treat all traffic equally.
For its part, the FCC offered no details on its next step but stressed that it remains committed to the idea of net neutrality.
“Today’s court decision invalidated the prior commission’s approach to preserving an open Internet,” the agency 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.”
Denver Post staff writer Andy Vuong contributed to this report.
What the ruling said
The Federal Communications Commission lacks authority to order cable TV provider Comcast Corp. to follow “network neutrality” rules, which require broadband providers to treat all Internet traffic equally.
WHAT IT MEANS: The ruling makes it difficult for the FCC to mandate net neutrality for all broadband providers and to push some key recommendations in its national broadband expansion plan.
WHAT’S NEXT: The FCC could appeal or ask Congress for the legal authority it needs. It could also reclassify broadband as a more heavily regulated telecommunications service. The Associated Press
