A federal appeals court Tuesday rejected the Federal Communications Commission's authority to sanction Comcast for interfering with peer-to-peer traffic, reversing the commission's first attempt to enforce network neutrality.

The U.S. Court of Appeals for the District of Columbia Circuit vacated (.pdf) the agency's 2008 decision ordering Philadelphia-based Comcast to stop hampering the peer-to-peer service BitTorrent as a traffic-management practice.

The FCC had acted in response to complaints Comcast was sending forged packets to broadband customers to close their peer-to-peer sessions. Comcast appealed to the circuit court, arguing that the FCC overstepped its bounds.

FCC Chairman Kevin Martin’s replacement, Julius Genachowski, proposed new rules last year that the agency was hoping would sidestep an unfavorable circuit decision.

"Today’s court decision invalidated the prior commission's approach to preserving an open internet," FCC spokesman Jen Howard said in a statement. "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."

Genachowski said the agency was enforcing the net neutrality Four Freedoms, a set of agency principles dating to 2005 that guarantee that cable and DSL users have the right to use the devices, services and programs of choice over their connections.

Digital rights groups pointed out that the three-judge panel's unanimous decision stems from deregulation, in which the FCC, with the Supreme Court's blessing, began regulating cable internet service providers as "information services" instead of as "telecommunication services." The latter, which includes phone carriers, are subject to a bevvy of rules and obligations, including some that mimic net neutrality rules. They range from taxes to subsidize low-income users to "common carrier" rules that allow phone users to call whomever they like using whatever device they choose – from a Mickey Mouse-style phone to a fax machine.

"This crisis is not a result of a weak congressional law, but a direct consequence of the previous two commission's 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," said S. Derek Turner, Free Press' research director.

Free Press, in 2007, urged the commission to sanction Comcast for its throttling practices – practices Comcast said were designed as traffic-management tools.

Comcast complied with the order and appealed.

Sena Fitzmaurice, a Comcast vice president, said the cable concern was "gratified" by the decision and said it appealed "to clear our name and reputation."

"Comcast remains committed to the FCC's existing open internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant internet," she said.

Public Knowledge, which with Free Press brought the Comcast complaint to the FCC, said the commission could sidestep Tuesday's decision by bringing internet service "back under some common-carrier regulation similar to that used for decades."

Absent that, or congressional intervention or a Supreme Court reversal, the court's decision also throws the FCC's Broadband Plan into doubt because "there are no protections in the law for consumers' broadband services," said Gigi Sohn, Public Knowledge's president.

Sohn added that the commission "would not have to impose a heavy regulatory burden on the telephone and cable companies, yet consumers could once again have the benefit of legal protections and the Broadband Plan could go forward."

Rep. Edward Markey (D-Massachusetts) said Congress should "provide the commission any additional authority it may need to ensure the openness of the internet."

Dan Brenner, the former legal affairs chief of the National Cable & Telecommunications Association, said internet service providers likely would not change course and begin throttling traffic because of Tuesday's developments. Doing so might invite some form of government intervention.

"As a practical matter, the case does not mean any management practices are going to be OK. That's just not going to happen," he said. "If customers feel they are getting bad service, they are going to complain loudly."

The appellate panel's decision comes two years after the FCC, under the Bush administration, ordered Comcast to stop its controversial practice of throttling file sharing traffic.

By a 3-2 vote, the commission concluded that Comcast monitored the content of its customers' internet connections and selectivelyblocked peer-to-peer connections – allegations Comcast denied.

The selective blocking of file sharing traffic interfered with users' rights to access the internet and to use applications of their choice, the commission said.

According to the commission, Comcast used deep-packet inspection to monitor customers' internet traffic, and routed packets according to their content, not their destination.

"In essence, Comcast opens its customers' mail because it wants to deliver mail not based on the address on the envelope but on the type of letter contained therein," the commission ruled.

Comcast’s throttling was widespread — up to three-quarters of all file sharing connections in certain areas, the commission said, resulting in a significant disruption to internet traffic.

Photo: symbi/Flickr

See Also: