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Net Neutrality Advocates React to Court Decision

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April 06, 2010

Net Neutrality Advocates React to Court Decision

By Alice Straight, TMCnet Web Editor

Net Neutrality advocates expressed concern over the watershed ruling handed down Tuesday by the U.S. Court of Appeals for the District of Columbia Circuit.

The three-judge panel unanimously tossed out the FCC (News - Alert)'s August 2008 cease and desist order against Comcast, which had taken measures to slow BitTorrent transfers but which had voluntarily discontinued the practice earlier in the year.

When reached by TMCnet, Google (News - Alert) officials referred to a statement from Markham Erickson, executive director of the Open Internet Coalition - a group to which the Internet search leader belongs.

'Today's D.C. Circuit decision in Comcast (News - Alert)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 said. 'The Court has taken an aggressive position, rejecting the FCC's legal authority to implement broadband Internet policy under Title I of the Communications Act.  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.'

The Open Internet Coalition represents consumers, grassroots organizations, and businesses advocating for Net Neutrality - the principle that advocates no restrictions on content, sites, or platforms, or on the kinds of equipment that may be attached to the Internet as well as no restrictions on the modes of communication allowed, as well as communication that is not unreasonably degraded by other traffic.

Parul P. Desai, vice president of Media Access Project, echoed some of the coalition's sentiments, saying he was 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 (News - Alert).

'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,' Desai said. 'We will continue to work with the Commission to ensure that it has the ability to protect the rights of Internet users to access lawful content and services of their choice, without interference from the ISP. 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.'

The ruling comes on the heels of the FCC's sweeping National Broadband Plan, which seeks to expand Internet access for all Americans and shift spectrum from television broadcasters to wireless carriers.

And while a formal Net Neutrality policy isn't outline in the plan the FCC indicated after the ruling that it won't be backing away from pursuing Net Neutrality policies.

'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,' said Jen Howard, spokeswoman for the commission. '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.'

The FCC does have the option of appealing the case to the U.S. Supreme Court, but there is not guarantee that the court will take the case. The FCC could ask Congress to rewrite the laws giving the FCC explicit powers over broadband access and content.

That is not likely to give a speedy result either - it took Congress five years to amend the Telecommunications Act under President Bill Clinton.

The third option is for the FCC to reclassify broadband services under an existing set of rules governing telephone services, rather than the current status as a lightly-regulated information service.  To do so the FCC would need to build a case and collect data to show that broadband should be treated like a transmission service because consumers focus on two aspects, which also happen to be the items companies market, speed and price.

According to Erickson, the court indicated that using Title II to regulate broadband Internet access providers would be acceptable.

'Establishing limited Title II authority with restraint and forbearance over broadband Internet access will remedy the Agency's own now-discredited attempt to cobble together ancillary authority under Title I.  That effort, undertaken by the previous Administration, was based on numerous incorrect legal, technological, and market assumptions,' he said. 'By contrast, Title II authority rests on sound factual and legal grounds, and will serve as a strong foundational basis for the FCC to protect access connections for consumers and small businesses.'

Reclassification and regulation could force AT&T (News - Alert)Inc. and Verizon Communications Inc to share lines with competing Internet service providers.

Lobbyists for Verizon and AT&T have called for a sweeping review of Internet policy. They want Congress to take over regulation of broadband service providers and to lessen the FCC's rule-making authority in favor of a case-by-case enforcement approach to Internet governance.

It would be a move away from regulation that others in the industry support.

'Today's unanimous and very thorough opinion in the Comcast case makes clear that the FCC needs to focus on the important task of making the promise of the National Broadband Plan a reality by spurring investment, innovation and job growth, and turn away from calls to impose restrictive regulations on broadband providers and the Internet ecosystem,' said Steve Largent (News - Alert), president and CEO of the CTIA - The Wireless Association.  'We look forward to working with the FCC Chairman and Commissioners on these efforts, which are vital to U.S. leadership in the broadband age.  This decision from the Court of Appeals suggests that it is time to turn away from murky regulatory debates and focus on connecting all Americans and leading the world in broadband.'

Alice Straight is a TMCnet editor. To read more of her articles, please visit her columnist page.

Edited by Alice Straight

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