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Comcast's legal blow to ‘Net neutrality, FCC draws mixed reaction

As would be expected, contentious issue remains contentious

By Paul McNamara on Tue, 04/06/10 - 2:10pm.

A court ruling today in favor of Comcast and against the FCC's vision of 'Net neutrality is generating decidedly mixed reactions, which should surprise no one who has followed this white-hot debate over the years.

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An FCC spokesperson said in a statement:

"The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies -- all of which will be designed to foster innovation and investment while protecting and empowering consumers - on a solid legal foundation. Today's court decision invalidated the prior Commission's approach to preserving an open Internet. But 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."

Ben Scott, policy director for the public interest group Free Press, tells AP that he believes the FCC will reclassify broadband as a telecommunications service, thus opening it up to tighter regulation:

"Comcast swung an ax at the FCC to protest the BitTorrent order. And they sliced right through the FCC's arm and plunged the ax into their own back."

A reclassification may prove problematic, according to Bernstein Research analyst Craig Moffet:

Moffett notes that applying a Title II service to broadband "would have sweeping implications, far, far beyond net neutrality," and would bring with it "a raft of regulatory obligations from the days of monopoly telecommunications regulation, potentially including price regulation." He says designating broadband as a Title II service "would broadly throw into question capital investment plans for all broadband  carriers, potentially for years, while the issue was adjudicated.:"

Moffett says telecom and cable operators have privately indicated that a Title II designation for broadband would head to a "radical downsizing of their broadband investment plans" due to the enormous regulatory uncertainty it would introduce.

Bruce Mehlman, former assistant secretary of commerce for technology policy, speaking to the Washington Post on the decision's possible impact:

"It may drive greater investment in broadband networks by removing regulatory uncertainty and perceived disincentives to invest in infrastructure," Mehlman said.

Tom Henderson, principal researcher for ExtremeLabs and a member of the Network World Lab Alliance, sees grave injustice:

Yes, Comcast has individuals that through the use of file-sharing applications, hog bandwidth at a far higher rate than others do. File-sharing applications are legal, although some of the media they share may be stolen. I have no quarrel with shutting down pirates, and pirating in general. But what's happened is that Comcast has placed a limit on the amount of data that one can upload and download to my account. If I want lots of ISO images, movies from Hulu, videos from YouTube, MP3s from iTunes-- whatever-- I now have a ceiling, a cap. Comcast swears this has been their policy on their website. I never agreed to it. The cap isn't mentioned in any contract I signed. ...

This isn't how the Internet was supposed to work, and how the web was supposed to be deployed. The egalitarian nature of it is gone now, at least from Comcast. The 9th Circuit smashed it. Now it's up to the US Congress to do something. We consumers don't have the lobbying money that the telcos give to them, the campaign contributions. Money talks; fairness is out the window.

The conservative Cato Institute, on the other hand, applauds the ruling:

The court's decision marks another turning point in the debate over whether the federal government should regulate Internet access services. What's entertaining about it is that the problem was solved two years ago by market processes-sophisticated Internet users, a watchdog press, advocacy groups, and interested consumers communicating with one another over the Internet.

The next step will be for advocates to run to Congress, asking it to give the FCC authority to fix the problems of two years ago.  But slow-moving, technologically unsophisticated bureaucrats do not know better than consumers and technologists how to run the Internet. The FCC's "net neutrality" hopes are nothing more than public utility regulation for broadband. If they get that authority, your online experience will be a little more like dealing with the water company or the electric company and a little less like using the Internet.

More to come.

(Update: Wall Street Journal has list of obvious winners and losers.)

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