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ECommerceTimes.com

Net Neutrality Takes One on the Chin

By Erika Morphy
Apr 6, 2010 11:53 AM PT

The U.S. Court of Appeals for the District of Columbia has issued a ruling that could spell the end of Net neutrality -- or merely redefine the battle terms a little. It's a matter of perspective.

Net Neutrality Takes One on the Chin

The court ruled that the Federal Communications Commission did not tie its assertion of "ancillary" authority to order Comcast to change it network management practices to a "statutorily mandated responsibility." Thus, it vacated the order.

According to one school of thought, all the FCC has to do rework its petition to the court to better establish its authority. On the other end of the spectrum is the belief that Net neutrality is in its death throes -- save intervention from Congress -- because the FCC was not able to establish its authority.

The truth probably lies somewhere in between.

"The fight over Net neutrality is not over, but there is a long slog ahead," Derigan Silver, a media law professor at the University of Denver, told the E-Commerce Times.

'Invasive and Anticompetitive'

The decision stems from an FCC finding in 2008 that Comcast's network management practices were invasive, and likely motivated by anticompetitive issues.

"Comcast monitors its customers' connections using deep packet inspection and then determines how it will route some connections based not on their destinations but on their contents," said the FCC in a statement at the time.

In addition to making a full disclosure of its practices to the FCC, Comcast was ordered to cease such traffic-management activities. The FCC gave Comcast until the end of the year to stop the practices and ordered it to spell out how it would manage its networks after that.

Comcast responded by asking the Court of Appeals for the D.C. Circuit to overturn the ruling, arguing that the Communications Act does not explicitly give the FCC the power to issue such a ruling.

The FCC order -- and subsequent appeal -- have been pivotal points in the Net neutrality debate. Comcast was the first ISP to challenge the FCC's authority outright.

Major Blow

The decision is a blow to Net neutrality, said Heather Polinsky, a faculty member at Central Michigan University's School of Broadcast and Cinematic Arts.

"Basically, it said the FCC didn't establish its authority over the issue, despite the arguments it made," Polinsky told the E-Commerce Times.

Indeed, the FCC painstakingly laid out its view of its authority in this issue. In a 65-page supplement that it released following its initial Comcast ruling, the FCC pointed out eight different clauses in the Communications Act that give it the power to act.

Or Procedural Setback?

Essentially, this ruling merely reflects a procedural error on the part of the FCC, according to Jonathan L. Kramer, founding attorney of Kramer Telecom Law Firm.

"What the court said was that the FCC hadn't shown it had jurisdiction. The court didn't reach a decision on the underlying issues," he told the E-Commerce Times.

The FCC will mount an appeal addressing these points, predicted Kramer. Then, in the next round, more substantive issues will be addressed.

"Round two will be the FCC regrouping and arguing that this is why we have authority to do XY and Z," he said.

It may not be a slam dunk for the FCC, said the University of Denver's Silver, but he does agree that an appeal is likely to be made.

"The big question," he said, "is what will Congress do in reaction to this? Will it finally move to create new laws?"


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