Key Portions of FCC's Broadband Plan Uncertain After Court Ruling

The Federal Communications Commission suffered a setback recently when a federal court ruled that the commission lacked the authority to regulate telecommunication companies' interference with customers' communications over the Internet. Without that authority, the FCC will not be able to enforce net neutrality, a concept that was to play a major role in the commission's National Broadband Plan. That plan set the goal of connecting 100 million homes to high-speed broadband by 2010 (see the March 17, 2010 issue). Though the FCC says that the ruling will have little effect on most of the plan, some portions, including those related to rural and low-income connectivity and to improve service for small businesses, could suffer delays.

Last week, a U.S. federal appeals court ruled in favor of telecommunications company Comcast, which had maintained that the FCC lacked the authority to sanction the company for interfering with its customers' use of peer-to-peer file sharing networks. The FCC sanctioned Comcast for violating open Internet principals by selectively slowing down customer connections based on the sites they were visiting and the type of data being transferred.

Net neutrality, the idea that Internet providers should not exercise this kind of selective interference, is a key element in the National Broadband Plan and one that the FCC argues is vital to fostering innovation and consumer protection. In a response to the news on the commission's official blog, FCC General Council Austin Schlick writes that the ruling undermines the approach the FCC has taken since 2005 to fulfill its duties as the "cop-on-the-beat for 21st century communications networks".

Per a 2002 commission decision, broadband is currently categorized as a Title I service at the FCC. As a Title I service, the FCC has less authority to regulate the practices and competitiveness of the broadband market. Many net neutrality groups and online businesses, including Google, Amazon, Netflix and eBay, are arguing that broadband should now be recategorized as a Title II service, placing it alongside phone service as a utility of key importance. The recategorization would remove the obstacles now facing the broadband plan, but would create a new set of court and congressional obstacles.

The FCC is currently seeking comments on how it should respond to these developments in order to preserve the open Internet and the affected parts of the National Broadband Plan. The solicitation is available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-607A1.pdf.

Read the FCC's action plan following the ruling at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297402A1.pdf.

Meanwhile, the FCC continues work on the portions of the National Broadband Plan not affected by the court's ruling. Last week, the commission announced a public-private partnership to provide technology training and tools to small, disadvantaged businesses and to small- and medium-sized enterprises in low-income areas. The FCC, Small Business Administration and several private partners will cooperate to provide training, technical support, low-cost equipment and business applications in order to promote access to online resources.

More information is available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297344A1.pdf.