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FCC Loses in Major Net Neutrality Case

By Tanya Roth, Esq. on April 07, 2010 11:15 AM

On April 6, The U.S. Court of Appeals for the District of Columbia handed down a decision expected to have a major effect on the on-going policy debates over net neutrality. Net neutrality is the practice of ensuring broadband providers use their networks to treat all traffic on the network equally. The FCC sought to enforce its rules regarding net neutrality against Comcast and was defeated by the decision of the court.

According to the report by the Associated Press, this case began when Comcast interfered with its subscribers' use of the service Bit Torrent, which allows users to transfer large packets of information like movies over the web. In 2008, the FCC issued an order, based on its net neutrality regulations, banning Comcast from interfering with Bit Torrent. Comcast disagreed with the order arguing they should be able to manage the networks they have paid for and maintain in any manner they like.

The District Court decision found the FCC lacks authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks. The Commission had argued that existing law gives it the authority to set rules for information services, including net neutrality rules. The court disagreed, finding that Congress has not given the FCC "untrammeled freedom" to regulate without explicit legal authority.

The AP reports that ironically, one outcome of this decision in favor of Comcast could end up putting them, and other broadband providers, in a worse position then they otherwise would have been in. Ben Scott, policy director for the public interest group Free Press, believes the FCC could react to this decision by re-classifying broadband from a lightly regulated telecom service to a more heavily regulated service. That could give the FCC even more freedom to regulate providers and could be the worst-case outcome from the perspective of the phone and cable companies.

Supported by such companies as Google and Skype, the FCC says it is still committed to the idea of net neutrally and will use this decision to guide it in its development of new regulations in the future.

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