You may have heard that a DC federal court issued a ruling last week challenging the FCC’s decision in 2008 to tell internet service provider Comcast to stop blocking peer-to-peer operator BitTorrent.
Depending on who you believe, the court either a) placed 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” [consumer advocacy group Free Press] or b) “merely invalidated one technical, legal mechanism for broadband policy chosen by prior Commissions. [FCC Chairman Julius Genachowski] Like most things, the truth likely lies somewhere in between.
As a practical matter, you and I should see no short-term difference in our internet service as a result of last week’s court’s decision. What then, was the impact? Essentially, the decision shifts the authority to decide how traffic will flow over the internet’s pipes from the FCC to the ISPs. That is for now.
The question being asked among policymakers and the people who lobby them in Washington is what is going to happen next. It appears the FCC has three options for moving forward: 1) appeal the court’s decision to the Supreme Court 2) seek congressional action or 3) begin a proceeding to reclassify the agency’s rulemaking authority and shore up it’s legal standing.
Like in the children’s story The Three Bears, the first option is too hot–its too uncertain what the Supreme Court would do with this case. The second option is too cold–Congress is seriously grid-locked. So it is the third option that seems to be just right. The popular wisdom is that the FCC will soon begin a rulemaking proceeding that will reclassify its rulmakning authority thus wresting back the ability to decide traffic flows over the pipes.
So while Comcast appears to have won the battle, in the end it seems, it has only delayed the FCC’s winning the war.