Legal technicalities can (and will) whittle away whatever is left of our democratic power to correct the crisis the establishment has created. In this, the freedom of the Internet from corporate meddling is vital.
Dateline: April 6, 2010
By Megan Tady
Save the Internet [print_link]
Today’s ruling for Comcast by the DC Circuit Court could be the biggest blow to our nation’s primary communications platform, or it could be the kick in the pants our leaders need to finally protect it. Either way, the future of the Internet, the fight for Net Neutrality, and the expansion of broadband is hanging in the balance. The court ruled that the Federal Communications Commission lacks the authority under existing legal framework to enforce rules that keep Internet service providers from blocking and controlling Internet traffic. The decision puts the FCC’s Net Neutrality proceeding and the National Broadband Plan in jeopardy.
The court ruled in favor of ISP Comcast, which was caught blocking BitTorrent Internet traffic in 2007 and contested the FCC’s attempts to stop the company. The decision has made it near impossible for the FCC to follow through with plans to create strong Net Neutrality protections that keep the Internet out of the hands of corporations. Additionally, without authority over broadband, the decision means the FCC will be hamstrung when it comes to implementing portions of its just released broadband plan. As a result of this decision, the FCC can’t stop Comcast and others from blocking Web sites. And the FCC can’t make policies to bring broadband to rural America, to promote competition, and to protect consumer privacy or truth in billing.
Unless… The FCC has found itself in the ridiculous situation of attempting to regulate broadband without the authority to do so unless the agency takes strong and decisive action to “reclassify” the service under the Communications Act.
Here’s the deal: under the Bush FCC, the agency decided to classify and treat broadband Internet service providers the same as any Internet applications company like Facebook or Lexis-Nexis, placing broadband providers outside of the legal framework that traditionally applied to the companies that offer two-way communications services.
That’s the loophole that let Comcast wiggle out from under the agency’s thumb.
Change it back
There’s an easy fix here: The FCC can change broadband back to a “communications service,” which is where it should have been in the first place. By reclassifying broadband, all of these questions about authority will fall away and the FCC can pick up where it left off – protecting the Internet for the public and bridging the digital divide. While Comcast and other ISPs may be celebrating today, this court decision will hopefully force the FCC to take action that will ultimately come back to haunt them. Free Press Policy Director Ben Scott told the Associated Press, “Comcast swung an ax at the FCC to protest the BitTorrent order. And they sliced right through the FCC’s arm and plunged the ax into their own back.”
Millions of you
Reclassification of broadband may be a simple fix, but it will take guts from FCC Chairman Julius Genachowski to actually implement it, particularly as ISPs unleash intense pressure to maintain the status quo. That’s where you come in: We need thousands of you, if not millions, to tell the FCC to protect Net Neutrality and the National Broadband Plan by reasserting their regulatory authority.
In less than 72 hours, the public comment period on the FCC’s Net Neutrality proceeding will end. Use this window of opportunity to give the FCC one giant public mandate: We want an Internet free from corporate control. Will Internet service providers like Comcast and AT&T persuade the FCC to allow them to control Internet traffic, rerouting people to the sites and search engines they own? Or will the FCC protect our last remaining open platform for communication, where anyone can create a Web site, post a video, start a business, or find the information they need without ISPs meddling with our traffic?
This could be one of the most important actions you take all year. The hours are ticking down. Take a few minutes to take action on something that will impact generations.
BACKGROUNDER:
FCC Loses Key Ruling on Internet `Neutrality’
Federal appeals court rules for Comcast and against FCC on key `net neutrality’ case
By JOELLE TESSLER
The Associated Press
WASHINGTON
A federal court threw the future of Internet regulations into doubt Tuesday with a far-reaching decision that went against the Federal Communications Commission and could even hamper the government’s plans to expand broadband access in the United States.
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. That was a big victory for Comcast Corp., the nation’s largest cable company, which had challenged the FCC’s authority to impose such “network neutrality” obligations on broadband providers.
Supporters of network neutrality, including the FCC chairman, have argued that the policy is necessary to prevent broadband providers from favoring or discriminating against certain Web sites and online services, such as Internet phone programs or software that runs in a Web browser. Advocates contend there is precedent: Nondiscrimination rules have traditionally applied to so-called “common carrier” networks that serve the public, from roads and highways to electrical grids and telephone lines.
But broadband providers such as Comcast, AT&T Inc. and Verizon Communications Inc. argue that after spending billions of dollars on their networks, they should be able to sell premium services and manage their systems to prevent certain applications from hogging capacity.
Tuesday’s unanimous ruling by the three-judge panel was a setback for the FCC because it questioned the agency’s authority to regulate broadband. That could cause problems beyond the FCC’s effort to adopt official net neutrality regulations. It also has serious implications for the ambitious national broadband-expansion plan released by the FCC last month. The FCC needs the authority to regulate broadband so that it can push ahead with some of the plan’s key recommendations. Among other things, the FCC proposes 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.”
Comcast welcomed the decision, saying “our primary goal was always to clear our name and reputation.”
The case centers on Comcast’s actions in 2007 when it interfered with an online file-sharing service called BitTorrent, which lets people swap movies and other big files over the Internet. The next year the FCC banned Comcast 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 it had 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 Martin’s successor, Democratic FCC Chairman Julius Genachowski, is 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 “common carrier” obligations that make traditional telecommunications services share their networks with competitors and treat all traffic equally. But the FCC maintains that existing law gives it authority to set rules for information services.
Tuesday’s court decision rejected that reasoning, concluding that Congress has not given the FCC “untrammeled freedom” to regulate without explicit legal authority.
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 decision.
But both of those steps could take too long because the agency “has too many important things they have to do right away,” said Ben Scott, policy director for the public interest group Free Press. Free Press was among the groups that alerted the FCC after The Associated Press ran tests and reported that Comcast was interfering with attempts by some subscribers to share files online.
Scott believes that the likeliest step by the FCC is that it will simply reclassify broadband as a more heavily regulated telecommunications service. That, ironically, could be the worst-case outcome from the perspective of the phone and cable companies.
“Comcast swung an ax at the FCC to protest the BitTorrent order,” Scott said. “And they sliced right through the FCC’s arm and plunged the ax into their own back.”
The battle over the FCC’s legal jurisdiction comes amid a larger policy dispute over the merits of net neutrality. Backed by Internet companies such as Google Inc. and the online calling service Skype, the FCC says rules are needed to prevent phone and cable companies from prioritizing some traffic or degrading or services that compete with their core businesses. Indeed, BitTorrent can be used to transfer large files such as online video, which could threaten Comcast’s cable TV business.
But broadband providers point to the fact that applications such as BitTorrent use an outsized amount of network capacity.
For its part, the FCC offered no details on its next step, but stressed that it remains committed to the principle of net neutrality.
“Today’s court decision invalidated the prior commission’s approach to preserving an open Internet,” the agency’s statement 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.”
Copyright 2010 The Associated Press.
