April 9, 2010, 12:00 AM

A court ruling threatens the equal treatment of all web traffic

Backers of an open Internet lost a battle this week but may be in better position to win the war, as a court decision against the FCC spurs the push for government action to keep the web free of use restrictions, experts say.

Proponents of an open Internet lost a battle this week over “net neutrality,” but a court decision against the U.S. Federal Communications Commission could ultimately lead to stronger government action to keep the web free of use restrictions, experts say. Online retailers generally oppose letting Internet service providers charge more for certain kinds of traffic, fearing it could lead to limits on their use of online video and other rich media.

“The court decision earlier this week does not change our broadband policy goals or the ultimate authority of the FCC to achieve those goals,” FCC chairman Julius Genachowski said in response to Tuesday’s decision by the U.S. Court of Appeals for the District of Columbia.

The appeals court ruled that in 2008 the FCC exceeded its legal authority under Title I of the Communications Act of 1934 when it sanctioned Comcast Corp. for slowing down the web traffic of some customers who were downloading large files through peer-to-peer networks like BitTorrent. The ruling came in a case brought against the FCC by Comcast.

But the court may have done proponents of an open Internet a favor by putting the FCC back on the right track in terms of the most effective way to regulate the Internet, says Markham Erickson, executive director of the Open Internet Coalition, an organization representing Internet retailers and others in favor of net neutrality, the common term proponents use to describe an open Internet.

The FCC, Erickson says, switched during the administration of George W. Bush to operating under Title I of the Communications Act, a step that left the agency without substantial legal backing to maintain an open Internet. Now that the court has ruled that the FCC can’t act under Title I, the agency is expected to return to using the more appropriate Title II of the Communications Act, he says.

Title I of the Act pertains generally to information services, which had left the FCC without much legal backing to address Internet broadband issues, but Title II specifically refers to telecommunications and electronic publishing, a spokesman for the Open Internet Coalition says. “Broadband is much closer to telecommunications and so is more appropriate under Title II,” he says.

“The court recognized this issue and appeared to invite the commission to proceed against Comcast and other broadband Internet access providers under Title II,” Erickson says. “Title II authority rests on sound factual and legal grounds, and will serve as a strong foundational basis for the FCC to protect access connections for consumers and small businesses.”

The FCC has not yet said how it will proceed, or if it will return to operating under Title II as some industry observers expect. But the FCC did announce yesterday that it is moving ahead with plans to implement several recommendations of the National Broadband Plan, which involves more than 60 FCC rule-making and other notice-and-comment proceedings designed to expedite the deployment of affordable broadband Internet access for virtually all U.S. citizens. The plan is expected to help 100 million U.S. homes get broadband access.

“We’re putting the National Broadband Plan into action,” Genachowski says.

The FCC this week also extended until April 26 its official comment period on how to best preserve an open Internet.

It may get support from unexpected places. Comcast, for example, says it supports the overall effort to keep the web open to all users, even though it opposed the FCC’s 2008 method of opposing Comcast’s restrictions on users who were downloading large files. Internet service providers have expressed concerns that unusually heavy use of the Internet by some subscribers could adversely affect Internet performance for all users.

“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,” the company said this week in response to the court ruling.

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