Internet Regulation

“FCC loses Comcast challenge

By Cecilia Kang

Washington Post Staff Writer
Tuesday, April 6, 2010; 4:43 PM

Comcast on Tuesday won its federal lawsuit against the Federal Communications Commission in a ruling that undermines the agency's ability to regulate Internet service providers just as it unrolls a sweeping broadband agenda.

The decision also sparks pressing questions on how the agency will respond, with public interest groups advocating that the FCC attempt to move those services into a regulatory regime clearly under the agency's control.

The U.S. Court of Appeals for the District of Columbia, in a 3-0 decision, ruled that the FCC lacked the authority to require Comcast, the nation's biggest broadband services provider, to treat all Internet traffic equally on its network.

That decision -- based on a 2008 ruling under former FCC chairman Kevin Martin -- addresses Comcast's argument that the agency "failed to justify exercising jurisdiction" when it ruled Comcast violated broadband principles by blocking or slowing a peer-sharing Web site, Bit Torrent.

But it also unleashed a broader debate over the agency's ability to regulate broadband service providers such as AT&T, Comcast and Verizon Communications.

The judges focused on whether the FCC has legal authority over broadband services, which are categorized separately from phone, cable television and wireless services. The agency currently has only "ancillary authority" over broadband services, a decision made by past agency leaders in an attempt to keep the fast-moving Internet services market at an arm's distance from the agency.”

“Does the Internet Need More Regulation? FCC to Decide

Posted by David L. Cohen, Executive Vice President, in Broadband

Today, the Chairman of the FCC, Julius Genachowski, announced that he will ask the FCC to adopt new regulations on the way that companies like Comcast, AT&T, Verizon, Sprint, T-Mobile, Hughes Satellite, and thousands of others provide Internet services to consumers.

There’s been a debate in Washington for the last six years over whether rules like these are necessary to promote an “open Internet” and an innovation economy. And before that, there was a debate that began more than a decade ago over whether Internet Service Providers should be required to let others resell their services.

We welcome the dialogue suggested by the Chairman in his comments, and we completely agree that any consideration of new “rules of the road” begin with notice and an open, public rulemaking proceeding – this is both fair and appropriate.

But before we rush into a new regulatory environment for the Internet, let’s remember there can be no doubt that the Internet has enjoyed immense growth even as these debates have gone on.

The Internet in America has been a phenomenal success that has spawned technological and business innovation unmatched anywhere in the world. So it’s still fair to ask whether increased regulation of the Internet is a solution in search of a problem.

The FCC has had a “policy statement” in place since 2005 that sets expectations for “openness” on the Internet. We support and honor those policies.

When it was alleged in 2007 that one of Comcast’s network management practices regarding uploads of P2P files violated those policies, we defended our actions as a reasonable form of network management. However, the public scrutiny also led us to discuss our network management practices openly with the Internet community. And these discussions convinced us to move to a different network management practice.

We have implemented consumer-friendly disclosures regarding our network management practices, on the theory that, as the Chairman pointed out today, consumer transparency in this context is extremely important.

We went to court to challenge the way the FCC acted on that 2007 complaint against us, but for a relatively narrow reason — because the former FCC leadership simply handled the matter improperly, as even some who disapproved of our earlier network management system have conceded.

We will wait to see the specifics of the proposals that Chairman Genachowski brings before the FCC. But we welcome his proposal to have an open rulemaking process to discuss and analyze these important issues.

In his remarks, Chairman Genachowski stated that his goal is to “preserve” the openness of the Internet - an important acknowledgement that the Internet was and is open. He showed appreciation of the “substantial investment and technical ingenuity” on the part of companies like Comcast who make broadband Internet services available.  That is good news.

Chairman Genachowski has made it very clear that he intends for the FCC to undertake a “fair, transparent, fact-based and data-driven” process as it decides whether the Internet needs more regulation.  It will be incredibly important for the agency to review the data to determine whether there are actual and substantial problems that may require rules. As these questions are pursued, we are committed to work with the Chairman and his fellow Commissioners.”