Connected Research

Union policy research in the 21st century

FCC loses traffic management case

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The US Federal Communications Commission yesterday lost its ‘open internet’ court case against Comcast, the US cable service provider. The case stemmed from action taken by the FCC when it established that Comcast had been throttling traffic from high-bandwidth file sharing services. The court ruled that the FCC had failed to tie its actions to ‘any statutorily mandated responsibility’ – i.e. that it had no powers to intervene in ISPs’ network management policies and practices in the way that it did – and thus in favour of Comcast’s own arguments.

The case had become something of a cause célèbre for ‘net neutrality’ in the US – the notion that internet traffic should not be restricted in any way by those delivering an internet service – and the FCC was putting a brave face on the decision (statements here), re-stating its ‘firm commitment’ to an open internet and noting that, while the decision had invalidated the FCC’s prior policy approach,

The Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.

For its part, Comcast re-iterated its commitment to the FCC’s existing principles of an open internet, saying that its only purpose in taking the case had been to clear its name and reputation.

Some of the reporting focuses on the threat to the FCC’s ability to enforce its National Broadband Plan arising from the ruling, which the FCC may seek to deal with by seeking to have the principle of net neutrality enshrined in law, thus giving it the power to compel ISPs not to throttle traffic. The Commission has acknowledged that some of the recommendations in the Plan may be under threat as a result of the ruling and that it is examining each one to ensure that it has adequate authority. In the meantime, some mature reflection on the implications of the decision and the likelihood of change in a political context can be found here [registration required; limited viewing time]

In the UK, the Digital Economy Bill does contain such a power authorising Ofcom, under direction from the Secretary of State, to assess whether ‘technical measures’, including line speed throttling amongst others, should be imposed on ISPs for the purpose of preventing the use of the internet for copyright infringements, and giving the power to the Secretary of State to act on Ofcom’s assessments (clauses 10 and 11). Much of the attention has been given to clauses 17 (and now 18) of the Bill concerning the issue of what to do over copyright infringement, but it should be noted that this is very much the end of the line and that other measures are envisaged before such a stage is reached.

The DEB thus moves the discussion in this country on net neutrality substantially away from an open internet. However, it does so only in the context of copyright infringements – ISPs will not be able to use the law to prioritise traffic to their own content providers or to slow the connections of traffic headed to alternative providers, which was one of the reasons behind the FCC’s intervention with Comcast in the US. Coincidentally, the sites whose traffic was being throttled by Comcast were peer-to-peer BitTorrent sites.

Policies on an open internet, or on net neutrality, are fine in principle but are always likely to fall behind when the net is used for illegal activity, however much in need of reform and updating the law making that activity illegal apparently is.

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Written by Calvin

07/04/2010 at 10:49 am

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