Court says FCC cannot stop Comcast from blocking Bittorrent

A federal appellate court in the DC Circuit has ruled that the FCC does not have the authority under the Communications Act of 1934 to stop Comcast from blocking the use of peer-to-peer applications by customers on its network. To view the court’s opinion in PDF format, please go to FCC v. Comcast.

S. Derek Turner, research director for Free Press, made the following statement in response to the DC Circuit’s opinion in Comcast v. FCC:

“The decision has forced the FCC into an existential crisis, leaving the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan. As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. This cannot be an acceptable outcome for the American public and requires immediate FCC action to re-establish legal authority.

“This crisis is not a result of a weak congressional law, but a direct consequence of the previous two Commissions’ misguided and overzealous attempts to completely deregulate America’s communications networks. Past FCC actions created a huge loophole in the law that leaves the agency unable to protect consumer privacy or promote universal broadband access.

“The FCC must have the authority to carry out its consumer protection and public interest mission in the 21st-century broadband marketplace. The current Commission did not create this existential crisis, but it now has no choice but to face these tough jurisdictional questions head on, and do what is necessary to protect consumers and promote competition.”

Net Neutrality rules are a short-term solution

As I have been saying over and over again on MuniWireless, there is only one effective, long-lasting solution to the problem of ISPs blocking peer-to-peer applications and doing all kinds of things people don’t like: competition. That means the infrastructure (fiber, wireless) must be decoupled from the services that run on them (Internet access, voice). By giving the FCC all of the power to regulate ISPs, people are hostage to whoever is at the FCC. Today we have someone like Julius Genachowski, who is a friend of net neutrality, but tomorrow you could have another Kevin Martin.

On the positive side, many communities are rolling out fiber networks, which will provide small ISPs an alternative to the incumbent carriers. The owners of these fiber networks reqire that ISPs who lease access from them, must adhere to net neutrality principles. It will take a long time for alternative networks to appear, but that may be the only solution.