The FCC has been flexing its muscles since the Obama administration begin, from stimulus packages to network neutrality rules and on to the national broadband plan. But today in federal court, they got spanked by the judge as Comcast was vindicated – legally at least. The issue was whether or not the FCC under Kevin Martin had the authority punish Comcast for meddling with traffic on its network, specifically BitTorrent traffic. The court said that the FCC had acted without an actual law to back them up, i.e. they saw an injustice and just made up a rule to stop it.
So is the rest of the FCC’s network neutrality agenda floating without sufficient legal support? Well, yes and no. The problem stems from the FCC’s deregulation of broadband in 2005 under Kevin Martin, after which they then decided they could still regulate it anyway. If that seems like a rather obvious logical inconsistency, then welcome to the FCC. However, all they have to do is roll back that deregulation, and they’re all set again. This of course would be what last mile providers really *don’t* want to have happen. Did Comcast really want to win this ruling?
The alternative is that the FCC could wait for Congress to pass a law to re-establish the status quo, which is probably what Comcast wants them to do since it would take so long and slow them down. Or perhaps they could just ditch the whole neutrality angle entirely, which of course isn’t going to happen – it’s too popular.
Right now though, the industry sits in an ambiguous stew. Network neutrality is popular, it is being imposed, and it is an integral part of the government’s broadband plans. And it has little legal force behind it. Popularity, however, will hold it up for now. Comcast isn’t going to now go out and start filtering BitTorrent because legal or not they would come under a ferocious attack for it.
So while the FCC’s position is weakened a bit, what will actually happen is probably a whole lot of nothing. In the meantime, the lawyers and lobbyists have managed to make a couple years of work for themselves. Again.
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