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May 2010 | Volume 2/Number 3
Editor's Note

Despite Court Ruling, The Great Net Neutrality Debate Rages On

By Paula Bernier

The Federal Communications Commission in mid-March delivered to Congress a comprehensive document outlining how it and other regulatory bodies and industry players might work together to make broadband services more accessible, affordable and useful to the nation. Ironically, just a few weeks later the U.S. Court of Appeals for the District of Columbia Circuit ruled in Comcast's favor in a lawsuit the cable company filed against the FCC (News - Alert) saying the agency lacks the authority to stop it from bandwidth throttling select applications (in this case, BitTorrent P2P traffic).

Indeed, this lawsuit was the 800-pound gorilla in the room as the FCC went about its business of drawing up and presenting Congress with The National Broadband Plan. Then, in mid-April, the news came. Comcast (News - Alert) had prevailed. As reported by TMCnet's Patrick Barnard, Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit in his ruling said the FCC in ordering Comcast to stop "has failed to tie its assertion" of regulatory authority to any actual law enacted by Congress. As a result, Tatel reportedly opined, the agency does not have the authority to regulate an Internet provider's network management practices.

So, the court has made its ruling. What now? We'll have to wait to see. But it's clear that the FCC, which has repeatedly emphasized its interest in net neutrality and open networks, whatever all that may mean, is not ready to give up the fight. In the wake of the court's decision, FCC spokeswoman Jen Howard issued this 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. "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."

Meanwhile, Austin Schlick, general counsel of the FCC, blogged that the Comcast/BitTorrent (News - Alert) opinion "may affect a significant number of important [National Broadband] Plan recommendations." Schlick indicates that might include "recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity;

consumer protection, including transparency and disclosure; and consumer privacy." That said, Schlick writes, the FCC needs to do some further investigation as to exactly what will be impacted how and what to do about it.

However, as TMCnet blogger Gary Kim (News - Alert) writes, the FCC likely either will ask Congress to give it the authority to regulate broadband services or try to regulate broadband under common carrier rules.

Markham Erickson, executive director of the Open Internet Coalition, a group that counts Google among its members, meanwhile, was quoted in a TMCnet story as saying that the "legal challenge to Title I authority by Comcast has created an outcome where the FCC has no option but to immediately open a proceeding to clarify its authority over broadband network providers under Title II."

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