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Who’s in charge of the Internet now and what are the FCC’s options?

i-m-in-ur-internet-cloging-ur-tubesYou 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.

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So while Comcast appears to have won the battle, in the end it seems, it has only delayed the FCC’s winning the war.

Written By

Melanie is the Senior Technology Policy Representative at the National Association of Realtors. That means she lobbies Congress and Federal Agencies on technology policy issues of importance to the real estate industry. In her pre-NAR life Melanie has been a practicing attorney and a software start-up executive. Like any native Californian, Melanie loves good wine and bountiful farmers markets.

19 Comments

19 Comments

  1. Benn Rosales

    April 13, 2010 at 10:58 am

    You know, the problem with getting behind the third option is that we don’t always agree with the FCC, so what happens when they have to much authority and they overstep? Politically speaking, it could be bad, right? I’m curious what you think the right way to go about this may be? Waiting on Congress could be even worse if you ask me…

    • Melanie Wyne

      April 13, 2010 at 12:25 pm

      Benn,

      I think the most probable outcome is that the FCC will begin a rulemaking proceeding, ask the public for comments and eventually reclassify its authority to regulate from Title I of the Telecommunications Act to Title II. That is geeky telecom law speak for saying that the FCC has the votes to give itself back the authority that the Appeals Court took away in the Comcast case.

      Given the all the hand wringing by interested groups, I think they will go about this in a deliberate, methodical way. Of course, no matter who is “in charge” there will always be something to complain about. The heart of the matter comes down to whether you want the FCC to be the traffic cop or AT&T and Comcast.

  2. Roscoe Property Management

    April 13, 2010 at 4:23 pm

    The times they are a changin’. I suppose the question I have is how does this effect the average Joe? Will this effect my ability to Google freely and find the answer I need, or will I be pushed in another direction according to my ISP or the FCC?

    • Melanie Wyne

      April 13, 2010 at 4:47 pm

      I think the answer to your question is that its unclear right now. The big ISPs say that they believe in open internet principles and that the market will keep them in check. The FCC is considering its options and looking for a way to ensure that they are the ones to make sure the ISPs stay in line. At this moment, nothing is changing your ability to google what you want but we are all counting on the ISPs to play fair in the sandbox.

  3. Roscoe Property Management

    April 13, 2010 at 5:32 pm

    Melanie,

    Thank you for the clarification. I guess something like this was bound to happen sooner or later? On a lighter note – I <3 the pet taxi pic..

    Happy Tuesday!

  4. In Question

    April 15, 2011 at 12:53 pm

    According to the FCC and I have received numerous emails from them stating this reply : "They are not connected to the internet issues" So I really have to wonder whats their purpose in service? just like the BBB, I don't see them either doing anything they boast how and why they are so good. What gives here? is this all for spotlight attention? Christ people, get a grip with reality, either you have say or you don't, but don't brag what a hotshot you are if you can't back it up, your ignorance is showing – sadly. Case in point, you read all these thees and thous of rulings, threats etc (intimidation attempts)warning all DONT Screw with us type deals, then and only then when something is going down in the wrong path and a complaint is filed, every excuse is replied back to the consumer to get out of the responsibility, You all and many know this, came up with these lil phrases such as "
    If you cant handle the heat, stay out of the kitchen", "Dont bark at the wrong dog tree, ya might get thumped on the head by an acorn" on and on yet none practice what they preach, do you realize how stupid you look? Then again, your so bored with yourself you think your so clever and blow all these behaviors off as phfff, well just remember this hot shots, the people voted people like you in, all they have to do is stop voting, then your out of work, out of power out of everything, ever think about that? Scary isnt it, it should be you do it too all the ones who are the victims anyway now dont you. You are pathetic and a very insecure group. Cynical aint I, yeah Im funny that way, after all you taught us how to be smart a$$es.

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