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Court Saps FCC’s Strength on ‘Net Protection’

4/12/2010 12:01 AM Eastern

Washington — A spokeswoman for Federal
Communications Commission chairman
Julius Genachowski conceded the
U.S. Court of Appeals for the D.C. Circuit’s
decision to overturn its rebuke of Comcast
for impeding BitTorrent peer-to-peer file
transfers effectively invalidated the commission’s
established approach to ensuring
an open Internet.

Comcast and other network operators
were quick to both praise the April 6 decision and assure everyone
within e-mail range that they still believed
in the open Internet and the FCC’s openness
guidelines, and weren’t going to start a frenzy
of traffic-blocking.

“Comcast remains committed to the FCC’s
existing open-Internet principles, and we
will continue to work constructively with
this FCC as it determines how best to increase
broadband adoption and preserve
an open and vibrant Internet,” it said in a
statement.

Comcast has plenty of motivation to
be a good actor, as it is seeking FCC
approval of its $30 billion joint venture
with General Electric to assume control
of NBC Universal.

“We cannot state strongly enough that
this decision will change nothing about
the cable industry’s longstanding commitment
to provide consumers the best
possible broadband experience,” National
Cable & Telecommunications Association
CEO Kyle McSlarrow said.

Pledges of self-regulation aside, the FCC
could use clear regulatory authority to underpin
some of the host of rulemakings related
to the National Broadband Plan, as well
as its effort to expand and codify its networkopenness
guidelines.

The decision “strips the FCC of its
authority to move forward with the
broadband plan,” said a veteran lobbyist
who asked not to be identified.

The court ruled unanimously that as
broadband service is an information service,
the FCC had stretched its ancillary
regulatory authority beyond justification
under Title I of the Communications Act
— at least in regards to its decision that
Comcast had employed unreasonable network-
management practices by impeding
peer-to-peer uploads by BitTorrent. In the
wake of that now-vacated decision, Comcast
has changed that practice.

Backers of network-neutrality regulations,
including senior FCC Democrat
Michael Copps, were not assuaged by industry
pledges of openness. They formed
a cheering section for reclassifying Internet
access as a Title II telecommunications
service. That would give the FCC clear authority
over access, as well as rate regulation,
rather than having to rely on ancillary
authority.

Copps — who blamed past commissions,
not the court — said it was time to “stop doing
the ‘ancillary authority’ dance” and fix
the FCC’s authority in statute. “[T]reat broadband
as the telecommunications service it
is,” he said.

Theoretically, the FCC could reclassify
broadband almost immediately,
though on an issue this big
— and having pledged open, transparent
and thorough vetting — it would likely
take many months of comments and reply
comments before a vote on such a
change.

Howard Waltzman, partner at Mayer
Brown and former chief counsel for telecom
and Internet of the House Energy & Commerce
Committee, said he thinks reclassification is an uphill climb.

“You can’t just all of a sudden do a 180-degree
turn,” he said. “There have been 12 years
of precedent of the FCC declaring broadband
services to be an information service.”

FCC spokeswoman Jen Howard had no
comment on what the regulator would do
next, beyond her public statement that the
decision did not “close the door on other
methods” for “preserving a free and open
Internet.”

The FCC’s other options include seeking
a full-circuit review of the decision, which
was a unanimous ruling by a three-judge
panel. It could also seek Supreme Court review,
or let Congress take the lead by clarifing just what authority the FCC has over the
Internet.

September