Proponents of net neutrality were dealt a harsh blow last week when a U.S. appeals court ruled that the FCC could not stop Comcast from slowing service on peer-to-peer file sharing site BitTorrent. The unanimous written decision from the judges never rebukes net neutrality philosophically, but claims the FCC overstepped its powers in the realm of broadband regulation.
In all likelihood, Comcast’s victory will be the catalyst for a larger showdown that could play out in one of two ways. In the first scenario, the FCC will push back by redefining broadband as a Title II service and reassert it’s right to enforce net neutrality. Doing so would require the FCC to make a compelling argument for the switch and could be met by a challenge from the Telecommunications and Cable industries that would take the issue back to the courts — possibly to the Supreme Court eventually. A second scenario, and perhaps the more appropriate solution, is that Congress directly defines the FCC’s authority (or lack there of) in the realm of broadband regulation.
The original Telecommunications Act of 1934 was reworked by Congress in 1996 in part to address changes in technology, and despite only 14 years passing since, there have been rapid changes that necessitate a full review of the act. In addition to issues of net neutrality, there are several passages in the ’96 act that are antiquated and ambiguous in today’s world. For example, while the Internet is defined as an information service separate from telephone and broadcast services, consumers are increasingly going online for telephone service and access to broadcast content. These lines will only continue to blur, and rather than address issues on a case by case basis, it’s best to redefine the stipulations of the Telecommunications Act now with overarching reform.
President Obama has been a strong supporter of net neutrality since the early days of his presidential campaign and reaffirmed his commitment to the policy this week, though without setting a course for achieving it. His philosophic stance, beyond protecting companies like Google and Yahoo from potentially excessive charges, is the correct approach for protecting consumers and allowing small business innovation to flourish like it has since the Internet’s inception. Let’s hope last week’s ruling is a small setback that will pave the way for larger reform in favor of net neutrality.