After Appeals Court Decision, Whither Net Neutrality?
Narrow ruling stymies FCC authority to pursue policy, but new regulation may emerge
Norman Oder -- Library Journal, 04/07/2010
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- FCC may have to regulate broadband strictly
- Library groups remain optimistic
- Technology makes it easier to degrade Internet service
After a federal appeals court unanimously ruled Tuesday that the Federal Communications Commission (FCC) couldn’t stop Comcast from slowing the file-sharing service BitTorrent, what does that mean for the policy of net neutrality, in which all content—including, crucially to library groups, academic resources and online instruction—is treated equally?
In the near term, the narrowly written decision means that supporters of net neutrality, including the FCC majority and library and other advocacy groups, may have to find some new tactics.
“It's certainly a setback in the short term for all of us who see a role for the Commission in preserving the open Internet, not to mention encouraging rollout and adoption of broadband and the host of other worthy objectives in the National Broadband Plan,” Brandon Butler, Law & Policy Fellow, Association of Research Libraries, told LJ. “But the court did not rule out future FCC action in this area, just the particular approach taken by the previous Commission in its Internet policy statement. We are hopeful that the current Commission will reestablish its authority on sturdier ground as soon as possible.”
Last month, 11 library and higher education-related institutions and organizations sent a letter to FCC Chairman Julius Genachowski supporting net neutrality, noting that Internet Service Providers (ISPs) “have strong incentives to degrade certain Internet services, and new technologies increasingly allow them to control Internet traffic without end user knowledge.”
Broadband as basic utility?
The FCC, the New York Times suggested, may have to reclassify broadband service “as a sort of basic utility subject to strict regulation, like telephone service,” a change that both telephone companies and broadband providers oppose.
In a statement, the FCC said it was “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.”
Commissioner Michael Copps went farther, saying, “The only way the Commission can make lemonade out of this lemon of a decision is to do now what should have been done years ago: treat broadband as the telecommunications service that it is.”
The commission, however, is split 3-2, and Commissioner Robert M. McDowell applauded the decision, as did Commissioner Meredith Baker.
Legislative intent
Sen. John Kerry (D-MA), Chairman of the Commerce Subcommittee on Communications, Technology, and the Internet, released a statement saying that, while “we may need a new legal and regulatory framework for broadband… the FCC can and must continue the role it has always played protecting consumers and encouraging the deployment of networks.” When the Telecommunications Act of 1996 was considered, he said, "I know the Congress did not intend for cable and telephone broadband internet service providers to fall outside the authority of the FCC.”
No more Skype?
Writing on ZDnet, David Gewirtz warned that the decision could mean the end of Skype and VOIP communications, among other things, if ISPs “can legally charge to carry Skype traffic (or just straight block it).” Still, he acknowledged that, with Internet giants like Google and Microsoft able to weigh in, as well as future FCC action, the story is far from over.
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After Appeals Court Decision, Whither Net Neutrality?
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