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FCC Regroups after ‘Net Neutrality Loss

Legal options remain after court blocks FCC’s effort to guarantee fair network access.
April 6, 2010

A federal court’s smackdown of the Federal Communications Commission’s right to force broadband providers to give equal treatment to all traffic–so-called Net Neutrality–may actually make subsequent FCC efforts better, one observer says. (You can read Technology Review’s in-depth report on the subject here.)

The decision “is not fatal to the cause of network neutrality,” says Wendy Seltzer, an Internet law expert currently at the University of Colorado. She added that “the guidance from this ruling can help the FCC to craft a stronger, more lasting rule.” Network neutrality assures that Internet users can enjoy a non-discriminatory network service on which to build and get applications.

The legal battle was launched by Comcast. In the triggering event, the company had slowed access to a video file-sharing service BitTorrent. The FCC told Comcast to cease the slowdown, and later wrote rules requiring all Internet content to be treated equally. The ruling against the FCC came from the U.S. Court of Appeals in the District of Columbia Circuit, which said the commission lacks the legal authority to enforce net neutrality.

In the short term, the ruling means ISPs can, in theory, do things like charge more to heavy users of the networks, or restrict video content. But the FCC, in a statement, said that the court had “in no way disagreed with the importance of providing a free and open Internet, nor did it close the door to other methods for achieving this important end.”

To resuscitate the FCC’s regulatory bid, Congress could pass a law explicitly giving the FCC authority to enforce net neutrality. Failing that, Seltzer said “…the FCC can reach deeper into the Telecommunications Act and classify at least part of broadband Internet service provision as Title II “telecommunications service” and demand neutrality based on that jurisdiction.”

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