A DC Circuit Court decision against the FCC today is the "shot heard 'round the world" in the battle over net neutrality. Comcast emerges victorious in challenging the authority of the FCC to impose sanctions for discriminating against peer-to-peer network traffic in an attempt to limit bandwidth consumption and manage its network.
The Internet and wireless broadband have emerged as critical elements of the national infrastructure--providing a backbone for commerce and communications. The availability and stability of an open Internet are essential for both business and government interests.
The FCC--with its Connecting America: The National Broadband Plan--has been tasked by Congress with creating and implementing a vision for the future of the Internet in the United States. This ruling calls into question the authority of the FCC to oversee Internet and broadband communications--putting the ball back in Congress' court to more clearly define the role and authority of the FCC.
FCC spokesperson Jen Howard declared in an e-mailed statement "The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies--all of which will be designed to foster innovation and investment while protecting and empowering consumers--on a solid legal foundation."
Other parties have expressed disappointment and concern over the court ruling. Parul Desai, vice president of the Media Access Project also issued a statement in response to the decision. "I am disappointed in the Court's finding that the Commission did not make the case for its authority to take action against Comcast's blocking of BitTorrent. Media Access Project continues to maintain that the Commission must have the authority to protect all Internet users against harmful and anticompetitive conduct by Internet service providers."
Markham Erickson, executive director of the Open Internet Coalition takes a more critical stance, stating "Today's DC Circuit decision in Comcast v. Federal Communications Commission creates a dangerous situation, one where the health and openness of the Internet is being held hostage by the behavior of the major telco and cable providers."
Erickson goes on to say "The Court's sweeping decision eliminates the Agency's power to either enforce the Internet Policy Statement or possibly to promulgate new open Internet rules to protect consumers and small businesses under Title I. As a result, the FCC is now unable to police the Internet against anti-competitive and anti-consumer behavior by broadband providers, and may not be able to implement many of the elements of the National Broadband Plan, including comprehensive Universal Service Fund (USF) reform."
Desai explains in her statement "Because this case has turned into a lawyers' debate over technical issues, it is easy to lose sight of its importance to freedom of speech and expression. ISP interference to lawful uses of the Internet must not be tolerated, and the Commission must have the power to adopt rules to prohibit such practices."
I wrote an article a couple months ago related to this court case and the challenge to the authority of the FCC. I predicted "Losing this court case will provide the FCC with tangible proof for why the pursuit of net neutrality is so urgent, and give Congress incentive to more clearly specify the scope of the FCC's authority to oversee and police wired and wireless broadband providers."
Congress establishes the charter and scope of authority for the FCC. Congress directed the FCC to develop the National Broadband Plan. It is up to Congress to clarify the role and authority of the FCC to remove any confusion and prevent any future challenges such as this battle with Comcast.
The FCC's Howard summed up her statement with "Today's court decision invalidated the prior Commission's approach to preserving an open Internet. 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."
Businesses in America depend on Internet access and wireless broadband on a daily basis. Let's hope current and future initiatives by the FCC can stand up in court better than its attempt to oversee Comcast.