Internet consumers lost big – really big – in a decision issued by an appeals court in Washington this week.
On Tuesday the U.S. Court of Appeals for the District of Columbia rejected the legal basis the Federal Communications Commission used to stop Comcast from blocking its subscriber’s choice to access lawful content through an application called BitTorrent.
In essence, the court ruled that the FCC does not have the authority to preserve the freedom of consumers to choose what websites to visit, or programs to download, without interference from big Internet service providers such as Comcast and Verizon. Unless it is reversed, the ruling appears to allow broadband providers to engage in a whole host of highly egregious anti-consumer activities – up to and including the blocking of lawful content, applications, and devices. And, according to the court, the FCC may not have the legal authority to stop any of it.
So how did this all come about? It all started a couple of years ago some enterprising computer geeks discovered that Comcast, the country’s largest provider of high-speed Internet services, was secretly slowing down and blocking content utilizing BitTorrent, a highly popular file sharing software application.
The FCC ordered Comcast to knock it off, to which Comcast answered by filing a lawsuit contending the agency did not have the legal authority to do so. By implication, Comcast was effectively challenging FCC authority to regulate any ISP activities. Inexplicably, the court this week agreed with Comcast.
Consumers Union telecom policy analyst Joel Kelsey says the decision strikes directly at the most basic freedom of Internet consumers – unfettered access to the Internet content, software, and applications of their choice. That concept is called “network neutrality” and it is the main reason the Internet has become an unprecedented force in communication, commerce, and democracy itself.
“The FCC made the right call by stopping Comcast from blocking its subscribers from the software they wanted,” says Kelsey. “But Comcast’s legal maneuvering convinced the court to reject the FCC’s authority to do so.”
No matter what the appeals court said, it’s preposterous to think these companies can be trusted to police themselves. The FCC has to be a cop on the beat to help protect consumers.
So what can be done?
One possible solution would be for the FCC to open a proceeding to clarify its authority over broadband network providers under Title II of the Communications Act, which covers more traditional communications services such as landline telephone service and broadcast television and radio. Under heavy lobbying from the communications industry, the FCC in 2002 classified Internet service as an “information services” falling under Title I of the Communications Act, making them exempt from the much more consumer-friendlier regulations and enforcement powers the agency can choose to exercise under Title II.
That won’t be easy. The communications industry can be expected to fight such a move by the FCC with every bit of money and influence it has in Washington, both of which are huge.
It’s also possible Congress could step in and remove any doubt the FCC has the authority to regulate and police ISPs. It’s unclear if there is the political will to do that, however.
What is clear is that something has to be done to restore some viable protection for Internet consumers. And it needs to be done quickly.
