In what many are calling a setback for FCC efforts to preserve an open internet and expand broadband service to more Americans, the U.S. Court of Appeals for the District of Columbia ruled that the Commission did not have the authority to issue its August 2008 order against Comcast, which reprimanded the cable giant for interrupting internet traffic delivered via BitTorrent technology.
The FCC told Comcast to stop interfering with legal internet traffic, disclose to the FCC its network management practices and to alert consumers to any future changes. This was in response to widespread allegations showing that the company had deliberately blocked access to legal peer-to-peer content by interrupting connections between users’ computers. The Commission's order was not accompanied by a fine, however, and no specific rules were imposed to govern its network management practices.
The story first broke when the Associated Press tested Comcast’s national networks, confirming the interruption of legal content sent using BitTorrent. This raised questions about whether Comcast had violated the FCC’s stated net neutrality principles that "consumers are entitled to access the lawful Internet content of their choice; that they are entitled to run applications and use services of their choice; that they are entitled to connect their choice of legal devices that do not harm the network."
Comcast appealed the FCC ruling in the U.S. Court of Appeals on the grounds that the Commission did not have the regulatory authority over how the internet service provider manages its network. Although BitTorrent — a popular (and legal) peer-to-peer file sharing protocol — can be used in the unauthorized transfer of copyrighted material, it's also a common tool for sharing perfectly legit content. Keep in mind that Comcast's "network management" practices originally came to light when an AP reporter attempted to distribute a digital copy of the King James Bible (which is very much in the public domain) via BitTorrent.
In its decision, the Court ruled that "the commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any statutorily mandated responsibility."
The decision will likely have ramifications well beyond the BitTorrent case. As we've frequently mentioned, the FCC is in the midst of rulemaking to codify net neutrality principles that would prevent the targeting of lawful applications by ISPs for anti-competitive or other reasons. (There's still a couple of days left to file comments in this historic proceeding — our musician-friendly comments tool can help you do just that).
Another thing to consider is the Commission's National Broadband Plan, which offers a roadmap towards broader adoption of high-speed internet service across America. Without the authority to set general policy regarding the internet, the FCC may be less able to realize its goal of bringing quality, affordable broadband to underserved communities.
Some public interest groups, such as Public Knowledge, are suggesting that the FCC can and should reclassify its regulation of the internet — including rules governing network management — under Title II. This would give the commission broader authority over ISPs, under "common carriage" rules.
We know, we know — too much wonk!
Regardless of today's decision, FMC has remained consistent on the need for net neutrality rules guaranteeing that all users — including independent musicians and labels — can compete on a level technological playing field with the biggest companies. We're also pretty adamant about the need to expand broadband service so that more creators and entrepreneurs can participate in a legitimate digital music marketplace.
It remains to be seen how this decision will play out in the complex world of federal policy, but you can rest assured that we'll keep advocating on behalf of all musicians who depend on the open internet in their lives and careers.