BY STEPHANIE YOUNG
Two weeks ago, the U.S. Circuit Court of Appeals for the District of Columbia ruled that the FCC does not have authority to regulate broadband Internet service providers, granting Comcast the ability to shape its consumers’ use of certain web applications.
This is the most recent development in a string of court battles that stems from Comcast’s practice of delaying or blocking certain types of Internet traffic without disclosing the details to its customers. While other companies may also engage in the same practices, Comcast, as one of the biggest and most powerful ISPs, sets the standard for the industry.
The saga began in 2007, when one Comcast customer who had extensive network experience figured out that certain applications were being blocked. He realized that his Internet connection shut down when he tried to share his favorite music, public domain barbershop quartet recordings, via peer-to-peer applications. Because Comcast does not disclose what information they block and when they do it, less sophisticated users may not know that problems with their Internet connections are intentionally inflicted
by their ISPs.
The Electronic Frontier Foundation and Associated Press investigated, and discovered that Comcast purposely slowed or blocked peer-to-peer file sharing applications such as BitTorrent. Subsequently, special interest group Free Press filed a complaint against Comcast with the FCC in 2007 based on this practice. Free Press asserted that Comcast’s secrecy constituted a deceptive practice that should be regulated.
Comcast explained that this was merely a “network management practice,” to ensure that no one consumer took too large a share of its bandwidth away from other customers. However, it failed to regulate some other applications that used more, and restricted other applications that used less bandwidth.
In 2008, as the result of agency adjudication, the FCC ordered Comcast to disclose full details of its network management practices and create publicly available plans for new and nondiscriminatory practices. Comcast appealed this finding on the grounds that the FCC did not have authority to regulate under its “ancillary” authority. Comcast also claimed that the FCC could not make this decision through adjudication instead of conducting a formal rulemaking proceeding.
In the April 6 decision, the D.C. Circuit found that the FCC misused its authority in regulating Comcast’s network management practices, effectively allowing Comcast to inhibit transmission of whatever content it deems troublesome to its networks. FCC Chairman Julius Genachowski ’91 said that even despite this decision, his agency would look for other means to protect consumer interests in broadband.
As the appeal was pending, several bills introduced in Congress sought to remedy this issue from a consumer protection standpoint. The Internet Freedom Preservation Act, a bill introduced on July 31 of last year, includes enforcement provisions for noncompliant ISPs and creates law directly rather than delegating to the FCC for rulemaking. This bill is currently in committee but will probably be replaced by the more recent National Broadband Policy. The Broadband Consumer Protection Bill, introduced on March 15, aims to promote disclosure to consumers of the actual transmission speeds their ISPs achieve. The act would spur an FCC rulemaking to ensure that broadband marketing includes clear information to consumers about what speeds they can realistically expect, and to regulate ISPs’ marketing and service procedures.
The FCC released details of its National Broadband Plan, a priority of the Obama administration, on March 16, stating multiple goals of increasing the number of Americans with broadband connections, improving computer and Internet literacy, and making access more affordable. It remains to be seen how the National Broadband Plan will comport with the D.C. Circuit’s decision. Unfortunately, the recent Comcast decision means that the FCC may not have authority to regulate.
This decision left the FCC with lesser regulatory power over broadband, and consumers with fewer rights against the industry. In order to ensure that consumers receive fair terms and competitive prices, either Congress or the courts need to reverse this trend and place broadband squarely under the FCC’s authority to regulate.
Stephanie Young is a 2L.