By: Jason Rosenbaum Tuesday April 6, 2010 9:03 am
The federal appeals court in D.C. has just ruled in favor of Comcast in their suit against the FCC regarding net neutrality. Before I get into the actual ruling, it’s worth reminding folks what net neutrality is and what current law is.
Net neutrality refers to the practice of treating all Internet traffic equally regardless of type or source. It means whatever telecom company provides you Internet (cable, phone, etc…) can’t serve you the information you request at faster or slower speeds depending on what you request. News articles from the New York Times have to be served to your computer at the same speed as articles on this blog.
This equality with respect to content is what makes the Internet the amazing communications medium it is today. I can set up a blog and publish on the Internet just like media giants like NewsCorp. And my content and NewsCorp’s has to be served to anyone who wants it at the same speed. They might be a giant multinational company and I might be a blogger working from my basement, but to an Internet service provider, we’re equal. This allows startups like YouTube to exist – they don’t have to pay telecom companies to get preferential treatment, they can just set up shop and pay their bandwidth costs like anyone else.
Obviously, telecom companies see a big source of income in all this. They’d love to be able to charge, say, Google a big fee to keep its searches moving to users at top speed. But that means big companies will have the speed advantage on the Internet, wiping out everyone else.
Currently, net neutrality is a tradition, one that is supported and enforced by the FCC. Congress never passed a bill saying net neutrality was the law of the land, but up until recently no telecom company had violated net neutrality’s spirit. Then Comcast decided to slow down peer-to-peer traffic on its network, treating traffic differently based on source or content and violating net neutrality. The FCC used its regulatory authority to stop Comcast and Comcast sued. Hence today’s decision.
Today, this court has ruled basically that under current law, the FCC does not have regulatory authority over a telecom companies “network management practices.” If Congress would like to give the FCC that power, it needs to pass a law to do so. Here’s the introductory paragraph from the decision [pdf]:
In this case we must decide whether the Federal Communications Commission has authority to regulate an Internet service provider’s network management practices. Acknowledging that it has no express statutory authority over such practices, the Commission relies on section 4(i) of the Communications Act of 1934, which authorizes the Commission to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i). The Commission may exercise this “ancillary” authority only if it demonstrates that its action—here barring Comcast from interfering with its customers’ use of peer-to-peer networking applications—is “reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities.” Am. Library Ass’n v. FCC, 406 F.3d 689, 692 (D.C. Cir. 2005). The Commission has failed to make that showing. It relies principally on several Congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create “statutorily mandated responsibilities.” The Commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast’s network management practices.
The decision was written by Judge Tatel, a Clinton appointee, with no dissents.
This is, without a doubt, a big blow to net neutrality. The administration had, in some sense, hoped to avoid passing net neutrality legislation through Congress. Instead, it nominated Julius Genachowski as FCC Chairman, and he’s been an outspoken proponent of net neutrality and the FCC’s authority to enforce it. And they moved ahead with their broadband plan, one that relies on net neutrality. Now it seems like to get what they want out of their broadband plan – which means jobs, money to communities, education, and the like and is a big priority – they’re going to need to pass a net neutrality bill through Congress.
The prospects for such a bill are uncertain. Net neutrality is enemy #1 for the telecom companies, and they have lots of money to spend on astroturf campaigns and lobbyists. Members of Congress have in the past stood with them instead of us. They’re also very good at making up reasons for why net neutrality is supposedly bad for America – things like it will kill competition or raise service prices – all of which are universally untrue. And of course, the right wing, led by the likes of Glenn Beck, is taking what is basically an argument for unfettered entrepreneurship and twisting it into a government plot to control the Internet.
It’s now squarely up to Congress and the administration to stand up to the rich telecoms and protect the basic freedom that has made the Internet what it is. Otherwise, we’ll soon be paying for our Internet – which is already some of the most expensive and slowest in the developed world – like this: