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FCC lacks authority to enforce net neutrality, appeals court says [San Jose Mercury News, Calif.](San Jose Mercury News (CA) Via Acquire Media NewsEdge) Apr. 7--WASHINGTON -- Intervening in a high-stakes battle over regulation of Web traffic, a U.S. appeals court issued a ruling Tuesday that sharply undermines the federal government's ability to enforce its vision of a free Internet. The U.S. Court of Appeals for the District of Columbia ruled that the Federal Communications Commission failed to establish its legal authority to take action in 2008 against Comcast for blocking customers who were consuming large amounts of bandwidth. The court essentially rejected the FCC's argument that it had the power to regulate Internet service providers -- a ruling that also throws into doubt whether it has the power to implement much of its recently unveiled national broadband plan. The decision deals a direct blow to proponents of so-called net neutrality rules, which require Internet service providers like Comcast to treat all Internet traffic equally. Without such rules, critics fear that Internet service providers could play favorites on their networks, blocking or charging for video or other content that competes with their own offerings, or offering lower speeds for those outside services. But the FCC in recent months has gone beyond its advocacy of net neutrality with proposals that would, for instance, extend broadband offerings into unserved rural areas. The court's ruling calls into question the legal underpinning for such regulation. "The ramifications of this go far beyond Comcast blocking BitTorrent," said S. Derek Turner, research director for the consumer advocacy group Free Press, referring to the Internet file-sharing service that Comcast blocked, leading to the FCC's action. "The FCC is essentially unable now to protect consumers and implement the national broadband plan." Others call those worries overblown and say the bigger threat is government regulation of the fast-evolving Internet. "This is not going to change anything a bit," said Verizon's executive vice president and general counsel, Randal Milch, referring to the company's Internet service. Internet content companies such as Google (which owns YouTube), Yahoo and Facebook are big supporters of net neutrality rules, which would guarantee them unfettered access to broadband networks. Others argue that the lack of such regulations could hurt innovation on the Web, potentially forcing content creators to negotiate with broadband companies to secure adequate access to their pipes. FCC Chairman Julius Genachowski, who was appointed by President Barack Obama, has made net neutrality a centerpiece of his agenda. A spokeswoman for Genachowski said in a statement that the FCC remains "firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans." But it was unclear Tuesday what the FCC's next move will be. It could move to reclassify broadband as a telecommunications service (it was categorized as an information service during the Bush administration), giving the FCC direct authority over Internet service providers in the same way it is able to regulate phone companies. But that would probably entail years of rule-making and legal proceedings, potentially delaying Genachowski's ambitious broadband agenda. The commission could ask Congress to pass legislation giving it authority over broadband. But that would probably trigger opposition among Republicans opposed to broader government regulation. Or the FCC could appeal to the U.S. Supreme Court. While Tuesday's ruling isn't likely to affect Internet users overnight, some critics said it could, in time, dramatically change the Web experience. Eric London, a spokesman for the Open Internet Coalition, a group that includes Google and other companies, said one potential result of the court decision is that consumers would have to pay more -- or could be blocked -- if they decide to access data-intensive services, or services that compete with products offered by Internet providers such as AT&T, Verizon or Comcast. "Consumer choice is the core issue here -- consumers being able to go where they want to go on the Internet, and use the applications they want to use on the Internet," London said. Internet providers blocking competing services "is not an academic issue," London added. For example, he said Skype is not available to AT&T Wireless customers. AT&T has also raised the possibility of charging more to customers who are intensive data users, or charging content providers more for data-intensive services -- costs that he said would most likely be passed on to consumers. But others dismissed those warnings. "The idea that this ruling will invite bad behavior is nonsense," said Bruce Mehlman, a former assistant secretary of commerce for technology policy during the Bush administration and now co-chair of the Internet Innovation Alliance. "Companies need to manage their networks to handle high volumes of traffic and bona fide threats out there, but we're simply not going to see blocking or degrading of disfavored sites. It would be bad business and it would beg for regulatory overkill." Beyond the debate over rules for Internet providers, critics said the court ruling casts a legal pall over the FCC's national broadband plan. The FCC, for example, has suggested tapping an $8 billion federal fund that now subsidizes rural phone service to expand broadband service instead. But that and other proposals could be difficult to pull off, critics said, now that the court has essentially said the panel lacks authority over broadband. The FCC had argued that it had the same broad powers to regulate Internet service providers that it has over "common carrier" telephone companies, TV and radio broadcasters. The federal court rejected that claim. "This particular order focuses on some pretty narrow, legal, wonky jurisdiction issues, about whether the FCC has jurisdiction to regulate Internet service providers," said Catherine Sandoval, a law professor at Santa Clara University who is a former FCC official. But if the legal technicalities are wonky, the effect of the ruling could be significant, and Sandoval said she expects the FCC to appeal the ruling to the U.S. Supreme Court. "I'm sure they are meeting today to decide whether they should appeal to the Supreme Court, and it's very likely that they would," she said. Contact Mike Zapler at [email protected] or 202-662-8921. Contact Mike Swift at [email protected] or 408-271-3648. WHAT IS NET NEUTRALITY? Net neutrality rules require Internet service providers to treat all content equally, charging the same and providing the same speeds for similar types of data. Net neutrality enables consumers to use any online service or device without interference or discrimination from their network provider. How does it affect me? Without net neutrality rules, advocates say, an Internet service provider could: Charge more for or provide slower access to particular Web sites and services, potentially turning the Internet into something like cable TV, with extra costs for premium service. Block services that compete with them. For example, if Comcast"s proposed merger with NBC is approved, it could favor NBC content online by slowing access to ABC.com or YouTube. Others say ISPs would risk losing customers by engaging in such practices. To see more of the San Jose Mercury News, or to subscribe to the newspaper, go to http://www.mercurynews.com. Copyright (c) 2010, San Jose Mercury News, Calif. Distributed by McClatchy-Tribune Information Services. For reprints, email [email protected], call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA. |